Case 3:18-cr-04683-GPC Document 399 Filed 05/02/22 PageID.6115 Page 1 of 5
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`RANDY S. GROSSMAN
`United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`California Bar No. 112520/226590
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email:Melanie.Pierson@usdoj.gov/Sabrina.Feve@usdoj.gov
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`CANDINA S. HEATH
`Senior Counsel
`Texas Bar No. 09347450
`Computer Crime and Intellectual Property Section
`U.S. Department of Justice
`Washington, D.C. 20005
`Tel: (202) 307-1049
`Email: Candina.Heath2@usdoj.gov
`
`Attorneys for Plaintiff
`United States of America
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`UNITED STATES OF AMERICA,
`Case No.: 18cr4683-GPC
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`UNITED STATES’ MOTION FOR
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`Plaintiff,
`PUBLIC FILING OR LIMITED
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`UNSEALING OF DEFENDANT’S
`v.
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`REDACTED MOTION &
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`ATTACHMENTS FILED
`JACOB BYCHAK (1),
`PURSUANT TO ECF NO. 348
`MARK MANOOGIAN (2),
`ABDUL MOHAMMED QAYYUM (3), and
`PETR PACAS (4),
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`Defendants.
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`Case 3:18-cr-04683-GPC Document 399 Filed 05/02/22 PageID.6116 Page 2 of 5
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`COMES NOW the plaintiff, United States of America, by and through its counsel,
`Randy S. Grossman, United States Attorney, and Assistant United States Attorneys
`Melanie K. Pierson, Sabrina L. Fève, and Computer Crime and Intellectual Property
`Section Senior Counsel Candy Heath, and hereby files its above-referenced Motion, based
`on the files and records in this case.
`On March 24, 2022, defendant Jacob Bychak filed a Notice of Motion for Leave to
`File Documents Ex Parte/In-Camera and Under Seal. ECF No. 348. On April 26, 2022, the
`Court directed Bychak’s counsel to provide the government with a redacted copy of the
`motion by April 29, 2022, so that the government could respond by May 6, 2022.
`On the afternoon of April 29, 2022, the government received the redacted filings,
`which indicate that they are under seal. The government requests that the Court either order
`the redacted documents to be filed publicly via ECF, or, at the least, be ordered unsealed
`for the limited purpose of permitting the government to share the documents with counsel
`for Company A.
`The reasons for this motion are two-fold: First, it is unclear why the redacted filings
`associated with ECF No. 348 were filed under seal. Unless a particular court record is one
`“traditionally kept secret,” a “strong presumption in favor of access” is the starting point.
`Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v.
`State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). The two categories
`of documents traditionally kept secret are grand jury transcripts and warrant materials in
`the midst of a pre-indictment investigation. Id. (citing Times Mirror Co. v. United States,
`873 F.2d 1210, 1219 (9th Cir.1989)). Defendant’s pleadings do not fall in either of those
`two categories.
` A party seeking to seal a judicial record bears the burden of overcoming the “strong
`presumption” against sealing by meeting either the “compelling reasons” or “good cause”
`standard and articulating those reasons, supported by specific factual findings, that
`outweigh
`the general history of public access and public policies favoring
`disclosure. Kamakana, 447 F.3d at 1178-79 (citations omitted). In particular, the courts
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`Government’s Motion to Unseal/for Partial
`Unsealing Order re ECF No.348
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 399 Filed 05/02/22 PageID.6117 Page 3 of 5
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`apply the “compelling reasons” standard to sealing dispositive motions and the “good
`cause” standard to sealing non-dispositive motions. Id. at 1179-80. The “good cause”
`standard typically applies to “documents produced in discovery” and is ordinarily
`evaluated under Fed. R. Civ. Pro. 26(c). Id. at 1180.
`Here, defendant is seeking to deprive the government of two significant witnesses
`whose testimony is material to establishing the revenue generated by the defendants’
`charged conduct. This type of significant impact on the government’s case is more akin to
`a dispositive motion than a discovery motion and the compelling reasons standard should
`therefore apply. “Different interests are at stake with the right of access than with Rule
`26(c); with the former, the private interests of the litigants are not the only weights on the
`scale. Unlike private materials unearthed during discovery, judicial records are public
`documents almost by definition, and the public is entitled to access by default.” Kamakana,
`447 F.3d at 1180. Under the compelling reasons standard, defendant needs to establish that,
`without sealing, the documents would “become a vehicle for improper purposes,” such as
`the use of records “to gratify private spite, promote public scandal, circulate libelous
`statements, or release trade secrets.” Id. at 1179 (citing Nixon v. Warner Commc'ns, Inc.,
`435 U.S. 589, 598 (1978)). The redacted motion does not satisfy that standard and should
`therefore be unsealed.
`Even if the compelling reasons standard did not apply, Bychak’s sealed motion
`would still not satisfy the need to show good cause. Rule 26(c) requires any party seeking
`sealing under this standard to first meet and confer, which defendant did not do. Rule 26(c)
`also requires a judicial determination that disclosure is needed to protect a party or person
`from undue “annoyance, embarrassment, oppression, or undue burden or expense.”
`Kamakana, 447 F.3d at 1180. While defendant may be annoyed at having the motion
`unsealed, the standard is more exacting than a party’s subjective feelings. For example, in
`Kamakana, the Ninth Circuit endorsed a magistrate judge’s findings that, while a litigant’s
`medical records could be sealed for good cause, mere assertions of privilege (in that case,
`the deliberative process privilege, the law enforcement privilege, and the official
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`Government’s Motion to Unseal/for Partial
`Unsealing Order re ECF No.348
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 399 Filed 05/02/22 PageID.6118 Page 4 of 5
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`information privilege), privacy interests, and embarrassment were insufficient to satisfy
`Rule 26(c). Id. at 1186. Because nothing in Bychak’s redacted briefing demonstrates good
`cause for sealing, the redacted briefing should be unsealed and publicly filed.
`Finally, public filing of defendant’s redacted briefing is consistent with Rule 49.1 of
`the Federal Rules of Criminal Procedure, which specifically contemplates that, in briefing
`involving sensitive information, redacted copies may be filed publicly in tandem with
`unredacted copies submitted under seal. Fed. R. Crim. Pro. 49.1(f) (“A person making a
`redacted filing may also file an unredacted copy under seal. The court must retain the
`unredacted copy as part of the record.”). Defendant has provided no justification to depart
`from this established practice and the equities weigh against such a departure. The Court
`has repeatedly advised the parties that filing materials under seal is a burden and delays the
`Court’s ability to retrieve and review the documents. The redacted briefing should therefore
`be publicly filed via ECF, and the government, in turn, can respond via the normal
`electronic portal.
`Another reason to unseal is that defendant’s briefing makes repeated representations
`as to what Company A, its counsel, and its experts have said and done. By filing these
`materials under seal, defense counsel is preventing the government from sharing the
`materials with Company A, distorting the factfinding process, and unfairly prejudicing the
`government’s ability to respond. Accordingly, at a minimum, the government requests that
`the Court issue a limited unsealing order permitting the government to share the briefing
`with Company A’s attorneys.
`For the foregoing reasons, the government respectfully submits that the redacted
`briefing associated with ECF No. 348 should be filed publicly or, in the alternative, a
`//
`//
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`Government’s Motion to Unseal/for Partial
`Unsealing Order re ECF No.348
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 399 Filed 05/02/22 PageID.6119 Page 5 of 5
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`limited unsealing order should be entered permitting the government to disclose the
`redacted briefing to outside counsel for Company A.
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`DATED: May 2, 2022
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`Respectfully submitted,
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`RANDY S. GROSSMAN
`United States Attorney
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`/s/Melanie K. Pierson
`Assistant United States Attorney
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`/s/Sabrina L. Fève
`Assistant United States Attorney
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`/s/Candy Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
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`Government’s Motion to Unseal/for Partial
`Unsealing Order re ECF No.348
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