In re Grand Jury Proceedings
| Decision Date | 08 April 2022 |
| Docket Number | Grand Jury Action 21-48 (BAH) |
| Parties | IN RE GRAND JURY PROCEEDINGS |
| Court | U.S. District Court — District of Columbia |
This is the fifth occasion-and hopefully the last-that petitioner Giorgi Rtskhiladze has called upon the Court to extend the ordinary parameters of how a grand jury transcript is to be handled to maintain the secrecy required under Federal Rule of Criminal Procedure 6(e). See, e.g., In re Grand Jury Procs. (“Notetaking Order”), No 21-gj-48 (BAH), 2021 WL 7908202 (D.D.C. Dec. 29, 2021); In re Grand Jury Procs. (“Denial Order”), No. 21-gj-48 (BAH), 2022 WL 474134 (D.D.C. Feb. 16, 2022). Now pending is his Motion for Reconsideration of the Order Denying Unrestricted Access to Petitioner's Grand Jury Transcript or, Alternatively, for an Order that the Departm[en]t of Justice Be Directed to File the Transcript Under Seal in the Related Case (“Pet'r's Mot. Recons.”), ECF No. 21. For the reasons that follow, petitioner's motion, construed as a timely filed motion for reconsideration of a judgment under Federal Rule of Civil Procedure 59(e), is denied.
This matter began, on November 1, 2021, when petitioner filed an application with the undersigned, as Chief Judge of this Court, for “access to the transcript of his grand jury testimony” before the now-expired grand jury used in connection with the investigation led by Special Counsel Robert S. Mueller, III (“the Special Counsel”). Pet'r's Appl. at 1, ECF No. 2. Petitioner indicated that he had filed a civil action “asserting defamation and violation of the Privacy Act against Special Counsel Mueller and the Department of Justice, ” arising from allegedly defamatory statements and implications about petitioner included in footnote 112 of Volume II of the Report on the Investigation into Russian Interference in the 2016 Presidential Election (“Mueller Report”). Id. at 1-2, 4. That civil action was dismissed by another Judge on this Court, and petitioner filed an appeal to the D.C. Circuit. Rtskhiladze v. Mueller, No. 20-cv-1591 (CRC), 2021 WL 3912157 (D.D.C. Sept. 1, 2021), appeal filed, No. 21-5243 (D.C. Cir. docketed Oct. 29, 2021). Petitioner indicated to this Court that, after reviewing the transcript, he “intend[ed] to submit an affidavit under seal in his district court suit.” Pet'r's Appl. at 3. Petitioner's request to review his grand jury transcript was granted, Min. Order (Dec. 9, 2021) (“Access Order”), but with express limitations on how petitioner could make further use of this grand jury transcript. Specifically, the Court expressly noted: “to be clear, this Order does not by itself authorize further disclosure (e.g., for inclusion in filings to be made in the related civil matter) of the contents of the transcripts.” Id. (emphasis in original).
Petitioner returned next to seek permission to take notes during his in-person review of the grand jury transcript, which permission the Department of Justice had withheld. Pet'r's Mot. Permission Take Notes During Review Tr. Grand Jury Test. at 1, ECF No. 8. On December 29, 2021, over the government's opposition, the Court granted petitioner's second request, subject to certain conditions that echoed petitioner's agreed-to terms, designed to maintain the secrecy of information derived directly from and sourced directly to review of the grand jury transcript: (1) “petitioner and his counsel shall refrain from disclosing such notes other than to counsel working on the related civil matter, ” (2) “petitioner's counsel of record shall retain custody of any notes taken pursuant to this Order, whether taken by counsel or by petitioner, at all times, ” and (3) “petitioner and his counsel shall destroy, upon the completion and filing of the contemplated affidavit or declaration . . ., all such notes and any copies or derivative works other than the completed filing.” Notetaking Order, 2021 WL 7908202, at *3.
On January 19, 2022, in the related civil case, petitioner publicly filed a motion for relief from the judgment of dismissal as to one count of his complaint, under Federal Rule of Civil Procedure 60(b). Pl.'s Mot. Under R. 60(b)(2) & (6) Relief Final J. (“Rule 60 Motion”), Rtskhiladze, No. 20-cv-1591, ECF No. 37 (now sealed). Attached was a declaration by petitioner including a recitation, “derived from notes taken by [himself] and [his] counsel during [the] review” of the transcript, id., Att., Decl. Pl. Giorgi Rtskhiladze (“Rtskhiladze Decl.”) ¶ 3, ECF No. 37-1 (now sealed), repeating various exchanges from his testimony with transcript citations.
The government promptly moved the next day in the civil matter to seal petitioner's Rule 60 Motion, including the Declaration, citing this Court's Access Order and Notetaking Order, arguing that this Court had not yet authorized public disclosure of any grand jury materials, and reiterating the government's understanding of petitioner's intent to make a sealed filing. See generally Gov't's Mot. Seal Pl.'s Rule 60 Mot., Rtskhiladze, No. 20-cv-1591, ECF No. 38. The government thus asked the presiding judge in that matter to “immediately seal Plaintiff's motion and its exhibits” pending direction from this Court as to whether public dissemination can be permitted. Id. at 2-3. The presiding judge sealed petitioner's Rule 60 Motion. Min. Order (Jan. 20, 2022), Rtskhiladze, No. 20-cv-1591.
The next day, petitioner returned to this Court with a third request for “clarification” that the Rule 60 Motion need not be sealed. See generally Pet'r's Mot. Clarification of Propriety of Sealing Pet'r's Decl. Related to His Grand Jury Test., ECF No. 13. The government responded, arguing that the Access Order expressly disallowed redisclosure of materials from the transcript review, including in filings in Rtskhiladze, and that the Notetaking Order imposed further restrictions on the handling of notes taken at the review. Gov't's Resp. Pet'r's Mot. Clarification at 2-3, ECF No. 14. The Court issued a minute order the same day “CLARIFYING that nothing in the Court's previous orders explicitly or implicitly granted permission to petitioner to disclose publicly material obtained from petitioner's review of his grand jury transcript.” Min. Order (Jan. 21, 2022).
The very next day, on January 22, 2022, petitioner made a fourth request of this Court. This time petitioner moved for a two-part order that, first, would unseal his Rule 60 Motion filed in another case before another Judge, and, second, would require the government to furnish petitioner with a copy of his grand jury transcript. Pet'r's Mot. Unseal All Rule 60(b) Materials & Prod. His Grand Jury Tr., ECF No. 17. Noting that a request for unsealing a docket item in a case is a separate question from whether petitioner may disclose grand jury materials and that the former question is properly directed to the presiding judge in that case, the Court denied the first part of the motion requesting unsealing of his Rule 60 Motion. Min. Order (Jan. 26, 2022). Further, given the context, the Court construed the request for production of a copy of petitioner's grand jury transcript as “implicitly includ[ing] a request for authorization to disclose this transcript, in whole or in part, as an antecedent step for inclusion in a public Rule 60(b) filing in a civil case, ” and ordered the parties to complete briefing accordingly. Id. (citation omitted). On February 16, 2022, the Court denied the second part of petitioner's motion for a copy of his grand jury transcript. Denial Order, 2022 WL 474134.
Petitioner has now returned with his fifth motion, seeking reconsideration of the Denial Order or, in the alternative, for an order directing the government to file a copy of the transcript under seal in the related civil matter, see Pet'r's Mot. Recons. at 1, which motion is now fully briefed and ripe for disposition.
Federal Rule of Civil Procedure 59(e) allows a litigant to file a “motion to alter or amend a judgment, ” within 28 days from entry of the judgment. Altering or amending a judgment under Rule 59(e) “is an extraordinary remedy which should be used sparingly, ” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (3d ed. 2012)), as a “limited exception to the rule that judgments are to remain final, ” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). “The Rule gives a district court the chance ‘to rectify its own mistakes in the period immediately following' its decision.” Banister v. Davis, 140 S.Ct. 1698, 1703 (2020) (quoting White v. N.H. Dep't of Emp. Sec., 455 U.S. 445, 450 (1982)). The law is well-settled that reconsideration “is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Pigford v. Perdue, 950 F.3d 886, 891 (D.C. Cir. 2020) (quoting Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004)); see also Leidos, 881 F.3d at 217 .
Consistent with Rule 59(e)'s corrective function, the only matters subject to reconsideration are those “properly encompassed in a decision on the merits, ” Banister, 140 S.Ct. at 1703 (quoting White 455 U.S. at 451),...
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