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Baranski v. United States

United States District Court, E.D. Missouri, Eastern Division

July 21, 2015

KEITH BYRON BARANSKI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

CHARLES A. SHAW, District Judge.

This matter is before the Court on the government's Response (Doc. 220) to the Court's Order of June 26, 2015 (Doc. 219), and petitioner's Response to the Government's Response (Doc. 221).

Background

The Memorandum and Order of June 3, 2015 (Doc. 214) (the "Order") directed petitioner Keith Baranski to either return to the government or destroy all copies of the following documents listed in Government Exhibit I: Documents 2, 4, 32, 36-38, 42, 43-49, and 55-58 (collectively the "Protected Documents"), as these documents were prohibited from disclosure as tax return information under 26 U.S.C. ยง 6103. See Order at 13-21, 40. The Court also ordered petitioner to "take reasonable steps to retrieve any copies of the documents that [he] provided to anyone else;" and to "not use or disclose any information gained from those documents for any purpose." Id. at 40.

Petitioner filed a Notice of Compliance and declarations of petitioner and his counsel in response to the June 3, 2015 Order. Counsel's declaration states that he destroyed physical and digital copies of the Protected Documents, provided a copy of the Order to petitioner's former counsel, and will ensure that any copies of the Protected Documents located in the future are destroyed in accordance with the Order. Petitioner's declaration states that (1) he contacted Key Evidence, the third-party copy center that photocopied documents he provided to the government in discovery, informed Key Evidence of the Order and directed it to destroy all documents in any form in which they existed; (2) Key Evidence stated it has destroyed all documents and that the only entity it provided copies to was the U.S. Attorney's Office; and (3) petitioner is manually reviewing the documents returned to him by Key Evidence and is destroying the Protected Documents.

Petitioner's Notice of Compliance also sought the Court's guidance concerning (1) the removal from deposition transcripts of references to the Protected Documents; and (2) his obligation concerning copies of the Protected Documents "that may have been produced by [non-party James] Carmi's former counsel." Notice of Compliance at 2. The Court then invited the parties' suggestions with respect to these issues in the Order of June 26, 2015.

As to deposition transcripts, the government asks that petitioner be ordered to:

1. Identify his references to the Protected Documents in deposition transcripts, as the government is aware of only one such reference, in the deposition of ATF Agent Johnson at pages 84-86 of the deposition transcript;
2. Mark pages 84-86 of Agent Johnson's deposition transcript as "Privileged - Subject to Protective Order;"
3. Contact the court reporting service that prepared the transcript of Agent Johnson's deposition, notify it of the Order of June 3, 2015, and ask it to review its files for any copy of Document 32 (marked as Exhibit 11 in the Johnson deposition), and return any such copy to petitioner's counsel to be destroyed;
4. Ask the court reporting service whether any third party has sought a transcript of Agent Johnson's deposition and/or Exhibit 11 thereto; and
5. Provide the court reporting service with a copy of any subsequent Court order (such as an order requiring the pages of Agent Johnson's deposition transcript to be marked "Privileged - Subject to Protective Order") and instruct it to "acknowledge receipt and understanding of such Order."

Petitioner responds that the "government has... set forth a litany of demands including requiring non-parties to provide declarations. As such, Baranski objects to such requirements [e]specially when compliance with the spirit of the Order has been achieved in most parts." Pet.'s Response at 1. Petitioner does not, however, offer any competing suggestions for Court action on his first request for guidance. Petitioner therefore does not assist the Court in resolving the issue he has brought before it.

As to petitioner's responsibility for documents possibly produced by James Carmi's former ...


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