The tension is on. And the truth may strike like a lightning bolt.
In response to requests made by the DOJ in a filing yesterday, Judge Nicholas Garuafis gave the prosecutors at least half a loaf.
He required, just as they requested of him, that all of Keith Raniere’s attorneys file “sworn declarations” identifying everyone who was shown or provided information covered by the Protective Order and what their relationship is to the case.
However, he ruled that the defense may file it under seal, and ex-parte, the latter meaning that the prosecution will not have access to this information since it is clearly covered under attorney-client privilege.
The judge also directed Raniere’s attorneys to provide, more specifically, a sworn declaration as “whether they have provided any [protected] material… including a copy of a hard drive, to Mr. Raniere, to Suneel Chakravorty, or to any person not entitled to such material under the Protective Order.”
The prosecution said in their filing that they believed Chakravorty had a copy of the hard drive, which is he is prohibited from obtaining from the lawyers without signing a protective order. Chakravorty claims he has not signed the order – and he does not have a copy of the hard drive.
The judge, however, did not grant the prosecution’s request that all individuals who have discovery materials – even if covered by the protective order – must turn them over to Raniere’s present counsel of record, Marc A. Fernich and Jeffrey H. Lichtman.
Here is the judge’s order:
Oct 14, 2021
ORDER: All defendants and current and former counsel of record involved in this matter have stipulated and agreed to a Protective Order. (Dkts. 39, 85, 990, 1001, 1060.) Defendant Keith Raniere’s current and former counsel include, among others, Steven Alan Metcalf, Esq., Joseph Daniel McBride, Esq., Martin Tankleff, Esq., Paul DerOhannesian, Esq., Marc A. Agnifilo, Esq., Jennifer Ann Bonjean, Esq., Jeffrey Lichtman, Esq., and Marc Fernich, Esq. The Protective Order prohibits “any and all Discovery Materials disclosed to the defendant and defense counsel” from being “further disclosed, disseminated, or discussed by the defendant or defense counsel to, or with, any individuals,” subject to specified exceptions in the Order. (Dkt. 39 5-7.) The court has received notice from the Government that this Order may have been breached. (Dkt. 1135.) All current and former counsel of record for Mr. Raniere are DIRECTED to provide individual sworn declarations identifying any and all persons to whom information covered by the Protective Order was shown or provided to during the course of this litigation. Counsel shall identify any such person’s relationship to the litigation. Counsel are DIRECTED to address specifically whether they have provided any material described in the Government’s 1135 letter, including a copy of a hard drive, to Mr. Raniere, to Suneel Chakravorty, or to any person not entitled to such material under the Protective Order.
Counsel are DIRECTED to file their declaration to the court ex parte and under seal not later than October 25, 2021. Ordered by Judge Nicholas G. Garaufis on 10/14/2021. (Kelly, Sean)
The terms of disclosure of evidence are covered in detail in the protective order.
As summarized by the prosecution, “defense counsel is prohibited from disclosing or disseminating any discovery materials provided to the defendant except to defense staff directly employed by defense counsel, subject to defense counsel’s supervision, and only after such staff have reviewed the terms of the Protective Order and signed [it].”
Much of the discovery material in the Raniere case is “sensitive and contains personally identifying information regarding individuals other than the defendants.”
The question of whether Chakravorty has the hard drive or other protected material was specifically addressed by AUSA Tanya Hajjar in her filing: “The government has received a report that Suneel Chakravorty, an associate of defendant Keith Raniere’s, is in possession of electronic discovery materials, including a copy of a hard drive, that were produced to defense counsel pursuant to the Protective Order.”
In a footnote, the prosecution further wrote, “The government understands that Mr. Chakravorty (who is not an attorney) purports to have drafted a motion on Raniere’s behalf based on materials from the hard drive, and may also have disclosed or discussed protected discovery material to and with other individuals not subject to the Protective Order.”
The improper release of discovery material falls more on the lawyers than those who may have improperly received it since the lawyer signed the protective order.