`U.S. Department of Justice
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`United States Attorney
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`Southern District of New York
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`The Silvio J. Mollo Building
`One Saint Andrew’s Plaza
`New York, New York 10007
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` October 9, 2015
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`*REQUEST TO BE FILED UNDER SEAL*
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`BY HAND DELIVERY
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`The Honorable Thomas P. Griesa
`United States District Judge
`Southern District of New York
`500 Pearl Street
`New York, New York 10007
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`Re: United States v. Prevezon Holdings, Ltd., et al., 13 Civ. 6326 (TPG)
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`Dear Judge Griesa,
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`The Government writes to request that the Court enter the attached proposed order that
`(1) confirms that the parties can use the deposition of Russian citizen and resident Nikolai
`Gorokhov at trial and (2) quashes subpoenas for trial testimony and document production
`presented to Mr. Gorokhov by defendants’ counsel at his October 1, 2015 deposition. As a
`foreign citizen and resident who does not conduct business in the United States, Mr. Gorokhov
`cannot be required to appear at trial or produce documents in the United States pursuant to a
`Rule 45 subpoena, and defendants’ attempt to do so is unlawful on its face. Moreover, either
`party is entitled to use his deposition testimony at trial under the express terms of Federal Rule of
`Civil Procedure 32(a)(4).
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`Mr. Gorokhov and his family are temporarily staying in the United States due to well-
`founded concerns that they could be endangered by individuals in Russia seeking to prevent Mr.
`Gorokhov from testifying in this matter. They wish to return to Russia now that Mr. Gorokhov’s
`deposition is complete. However, the Government has strong concerns that now that Mr.
`Gorokhov’s identity has been revealed, individuals in Russia could attempt to threaten or harm
`Mr. Gorokhov and his family in an effort to prevent Mr. Gorokhov from testifying at trial. Based
`on these safety concerns, the Government requests that the Court enter a public order
`conclusively stating that Mr. Gorokhov’s deposition testimony will be admitted at trial, thereby
`eliminating this incentive to harm him or his family. While the proposed order does nothing
`more than articulate the express terms of Rule 32(a)(4), a public Order making the admissibility
`of his deposition explicit will go far in securing the safety of Gorokhov and his family, as it will
`make clear that any additional testimony by him is not necessary and that, accordingly, any
`action against Mr. Gorokhov will not impact the trial. Accordingly, the Government respectfully
`requests that the Court address this issue on an expedited basis.
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`Case 1:13-cv-06326-WHP Document 659 Filed 04/14/17 Page 2 of 5
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`Page 2
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`The Gorokhov Deposition
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`Mr. Gorokhov is a Russian attorney who is not a party to the case. He nonetheless
`consented to travel to the United States to be deposed by the defendants. He is not involved in
`any of the underlying events set forth in the Amended Complaint, and in fact has little
`knowledge of what the case is even about. His sole relevance as a witness is that in the course of
`his own work in Russia he inspected and photographed a Russian court file containing
`documents that the Government seeks to introduce at trial. Despite his limited role as essentially
`a document authentication witness, Mr. Gorokhov was deposed for two days by the defendants
`on October 1 and 2, 2015, totalling over seven hours of questioning. The defendants were able
`to fully question him about his limited role in and knowledge of this matter.
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`Because of real and well-founded safety concerns, Mr. Gorokhov and his family,
`including his minor child, had to travel to the United States and were here for several weeks
`before his deposition took place. Gorokhov voluntarily travelled to the United States to be
`deposed at great inconvenience and cost to him and his family. Mr. Gorokhov, a practicing
`attorney in Russia, cannot work or earn money in the United States, and will suffer
`professionally and economically if he is forced to remain away from his legal practice in Russia
`for a prolonged period. Mr. Gorokhov’s minor child is missing school in Russia, and while the
`child has enrolled in school in the United States, the curriculum is different from that in Russia
`and the child will have to work hard to catch up once back in Russia.
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`As Mr. Gorokhov is a non-party who lives abroad, neither the Government nor defense
`can require him to return for trial. As Federal Rule of Civil Procedure 45(c)(1)(A) makes clear, a
`subpoena under the Federal Rules of Civil procedure can command a person to attend trial “only
`. . . within 100 miles of where the person resides, is employed, or regularly transacts business in
`person.” Additionally, Rule 32(a)(4) expressly provides that the parties are entitled to use at trial
`the deposition of a foreign witness like Mr. Gorokhov. See Fed. R. Civ. P. 32(a)(4)(B)(“A party
`may use for any purpose the deposition of a witness, whether or not a party, if the court finds . . .
`that the witness is more than 100 miles from the place of hearing or trial or is outside the United
`States, unless it appears that the witness’s absence was procured by the party offering the
`deposition.”). It cannot be disputed that defendants had ample notice of the deposition and were
`present to fully depose Mr. Gorokhov, and that Mr. Gorokhov resides outside the United States
`in Russia, where he wishes to return so that he and his family can resume their normal life.
`Moreover, the absence of a third-party foreign witness from trial is obviously not procured by the
`Government, which has no authority to compel Mr. Gorokhov to remain in the United States and
`which has granted him a standard three-year visa. Accordingly, his deposition testimony is
`clearly admissible at trial.
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`Before Mr. Gorokhov and his family return home, the Government respectfully requests
`that the Court enter the proposed order as means of removing any incentive for Mr. Gorokhov to
`be threatened or harmed in Russia. The proposed order does little more than confirm that Mr.
`Gorokhov’s deposition will be admissible at trial, consistent with the plain text of the Federal
`Rules of Civil Procedure. A public order making clear that, no matter what Mr. Gorokhov may
`encounter in Russia, his already-provided deposition testimony can be admitted at trial, will
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`Case 1:13-cv-06326-WHP Document 659 Filed 04/14/17 Page 3 of 5
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`Page 3
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`dramatically reduce the incentive for anyone in Russia hoping to influence this proceeding to
`threaten or injure him or his family.
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`Accordingly, the Government respectfully requests that the Court enter the proposed
`order as soon as possible, so that Mr. Gorokhov may return to Russia without fear of being
`threatened or harmed, and so that he may resume his work and provide for his family, and his
`minor child may resume regular schooling.
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`The Defendants’ Subpoenas
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`On October 1, 2015, the defendants presented Rule 45 subpoenas to Mr. Gorokhov
`during his deposition, purportedly requiring him to appear at trial in December and to produce
`documents by October 15, 2015.1 These subpoenas are unlawful on their face when directed to a
`foreign resident witness such as Mr. Gorokhov. Accordingly, the Court should quash the
`subpoenas.
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`As set forth above, under Rule 45, a subpoena may command a non-party to attend a trial
`or to produce documents only if that person “resides, is employed, or regularly transacts business
`in person” with 100 miles of the trial. Fed. R. Civ. P. 45(c)(1)(A). Mr. Gorokhov indisputably
`resides in Russia, and has been in the United States for approximately five weeks only to appear
`for his deposition. The subpoenas must therefore be quashed, pursuant to Rule 45(d)(3)(A)(ii).
`See In re Application for Order Quashing Deposition Subpoenas, No. M8–85, 2002 WL
`1870084, at *2-5 (S.D.N.Y Aug. 14, 2002) (Lynch, J.).
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`Unfortunately, this is not the first instance in this very case in which counsel for the
`defendants have served unlawful process and the intervention by the Court was required. In
`February of this year, this Court quashed a third-party subpoena to Hermitage Global because it
`required attendance at a deposition and the production of documents over 100 miles from where
`the employees of the corporation worked. See Hermitage Global Partners LP. v. Prevezon
`Holdings Ltd., 14 Misc. 318 (TPG) (S.D.N.Y. Feb. 19, 2015) (ECF No. 5) at 8 (“Because the
`100-mile rule applies in this instance, the court holds that the Global Subpoena does not comply
`with Rule 45(c). This alone is enough to quash the Global Subpoena on Rule 45 grounds.”
`(emphasis added)). And in March, this Court quashed a subpoena served on William Browder, a
`non-party served in Aspen, Colorado, where he did not reside or regularly transact business. See
`Tr., Mar. 9, 2015 (“Although he [i.e., Browder] may have been served in Aspen, he cannot be
`required to attend a deposition pursuant to that service. My ruling and finding is that he does not
`reside in Aspen, nor does he regularly transact business in Aspen and he cannot be deposed in
`Aspen. So, if there are subpoenas requiring him to be deposed in Aspen, those subpoenas must
`be quashed.”). The same result is even more appropriate here.
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`In addition, the subpoenas must be quashed pursuant to Rule 45(d)(3)(A)(iv), because
`they would subject Mr. Gorokhov to undue burden. Mr. Gorokhov, who has already endured
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`1 The subpoenas were written only in English, and Mr. Gorokhov, who does not speak English,
`returned the subpoenas to defense counsel. For the purposes of this motion, the Court can
`assume that the defendants successfully served Mr. Gorokhov.
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`Case 1:13-cv-06326-WHP Document 659 Filed 04/14/17 Page 4 of 5
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`Page 4
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`significant inconvenience and risk in temporarily traveling to the United States with his family
`and sitting for a deposition voluntarily, would have to travel back to Russia to get at least certain
`of requested documents, then return to the United States to provide the documents and testify at
`trial, as well as perform a detailed privilege review before any production, at great additional
`inconvenience and cost to this non-resident, non-party private individual. 2 The geographical
`limit of non-party subpoenas set forth of Rule 45 “gives non-party deponents protection from
`expending time and money to comply with a subpoena,” and “protect[s] such witnesses from
`being subjected to excessive discovery burdens in litigation in which they have little or no
`interest.” In re Edelman, 295 F.3d 171, 178 (2d Cir. 2002). Such protection is entirely
`appropriate here. Relatedly, the defendants’ attempt to serve unlawful process on Gorokhov, if
`permitted by the Court, would serve only to prolong discovery in this case long past the
`deadlines imposed by the Court, and is in any event unnecessary given that Gorokhov’s
`testimony relates solely to his taking a series of photographs, copies of which have been
`presented to the defense over three months ago. Indeed, in this very case the Court quashed a
`subpoena against Hermitage Global on undue burden grounds, where Hermitage Global had at
`most a tangential role in this case and the subpoena called for little that was discoverable and not
`duplicative of other discovery. See Hermitage Global Partners, 14 Misc. 318 (TPG), ECF No. 5
`at 9-10.
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`Mr. Gorokhov has already endured great inconvenience and burden to present the parties
`with photographs he took relevant to this case and to allow the defendants to depose him for over
`7 hours. The photographs, and Mr. Gorokhov’s deposition testimony about having taken them,
`are in the record, and Mr. Gorokhov and his family should be permitted to return to their lives,
`careers, and education in Russia without being subjected to burdensome and collateral demands
`for yet more documents and testimony.
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`2 As Gorokhov has testified, at least some of the requested documents are in Russia, and a
`number of requested documents are covered by the attorney-client privilege law of the Russian
`Federation, which differs from United States law and which would embroil the witness and
`potentially the Court in a time-consuming privilege review and litigation process. All of this is
`collateral and unduly burdensome given that Gorokhov’s connection to this case is in having
`taken a series of photographs, which have been copied for defense inspection months ago. There
`is no need to subject Gorokhov to such burdens, or to launch the Court into a foreign privilege
`law analysis, for records collateral to the photographs that Gorokhov took, which speak for
`themselves.
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`Case 1:13-cv-06326-WHP Document 659 Filed 04/14/17 Page 5 of 5
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`Page 5
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`Because of the sensitive nature of the safety concerns discussed herein, the Government
`respectfully requests that this letter be filed under seal. However, in order for the proposed
`Order to serve its purpose of helping to reduce the threat of harm to Gorokhov and his family,
`the Government respectfully requests the proposed order be filed publicly, with his name
`redacted, and that certified unredacted copies be provided to counsel for the parties. In this
`manner, individuals familiar with Gorokhov’s identity and role in the case will be aware of this
`order, and the threat to Gorokhov and his family will be correspondingly reduced, without the
`need to publicly disclose his identity at this time.
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`Respectfully submitted,
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`PREET BHARARA
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` United States Attorney
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`by: /s/ Paul M. Monteleoni
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`Paul M. Monteleoni
` Margaret Graham
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`Jaimie L. Nawaday
` Cristine I. Phillips
` Assistant United States Attorneys
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`(212) 637-2219/2923/2275/2696
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`cc: Counsel of Record (by email)
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