Food Delivery Holding 12 S.A.R.L. v. Dewitty and Associates Chtd ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re APPLICATION OF:
FOOD DELIVERY HOLDING 12
S.A.R.L.,
Miscellaneous Case No.
Applicant, 1:21-mc-0005 (GMH)
v.
DEWITTY AND ASSOCIATES CHTD,
Respondent.
MEMORANDUM OPINION
Food Delivery Holding 12 S.a.r.l. (“FDH”) has filed an application for an order pursuant
to 28 U.S.C. § 1782 to issue a subpoena for the taking of a deposition and the production of docu-
ments for use in an international arbitration before the Dubai International Finance Centre–London
Court of International Arbitration (“DIFC-LCIA”). The target of the subpoena is a local law firm,
Respondent DeWitty & Associates CHTD (“DeWitty”). 1 For the reasons that follow, the motion
is granted. 2
1
The relevant docket entries for resolution of these requests are (1) FDH’s application for an order pursuant to section
1782 (ECF No. 1); (2) FDH’s motion to seal, which includes, under seal, its memorandum in support of the section
1782 application and its exhibits (ECF No. 2); (3) DeWitty’s response to the Court’s Order to Show Cause why FDH’s
applications should not be granted (ECF No. 11); (4) FDH’s reply to DeWitty’s response (ECF No. 13); (5) FDH’s
supplemental memorandum (ECF No. 16); and (6) DeWitty’s surreply (ECF No. 17).
2
“Since the Court's decision on a Section 1782 application is non-dispositive, it may be decided by a magistrate judge
by opinion and order, rather than a report and recommendation to the district court.” In re Application of Shervin
Pishevar for an Order to take Discovery for use in Foreign Proceedings Pursuant to 28 U.S.C. § 1782, 439 F. Supp.
3d 290, 301 (S.D.N.Y. 2020) (citing In re Hulley Enterprises Ltd., 400 F. Supp. 3d 62, 71 (S.D.N.Y. 2019) (“This
Court agrees with the majority of courts finding that rulings on § 1782 applications are not dispositive.”)), adhered to
on reconsideration sub nom. In re Pishevar, No. 1:19-mc-503, 2020 WL 1862586 (S.D.N.Y. Apr. 14, 2020); see also
In re Pons, __ F. Supp. 3d __, __, 2020 WL 1860908, at *3 (S.D. Fla. 2020) (noting that “[t]he great majority of courts
I. BACKGROUND
The arbitration underlying this application concerns a company called Hungerstation 3—a
Saudi Arabian online and app-based food delivery service founded by Ebrahim Al-Jassim and for
which he served as CEO—and a shareholder’s agreement among Hungerstation; FDH, Hunger-
station’s majority shareholder; and Mr. Al-Jassim, Hungerstation’s minority shareholder. ECF
No. 2-5 at 5–8. In May 2019, pursuant to the arbitration provision in the shareholder’s agreement,
Mr. Al-Jassim alleged before the DIFC-LCIA that FDH had breached the shareholder’s agreement
in multiple ways, including by allowing FDH’s parent company, Delivery Hero, to “improperly
intervene in and/or manage the affairs of [Hungerstation]”; terminating Mr. Al-Jassim’s employ-
ment with Hungerstation; and sharing confidential Hungerstation information with its competitors.
Id. at 19–21.
FDH has interposed counterclaims in that arbitration alleging, among other things, that Mr.
Al-Jassim and others employed by Hungerstation used the company’s “assets and personnel to
establish and develop competing companies in the [Kingdom of Saudi Arabia,] which . . . [were]
used to skim untold profits out of [Hungerstation] in violation of the [shareholder’s agreement].”
ECF No. 2-4 at 7. More specifically, FDH asserts that, when Mr. Al-Jassim was CEO of Hunger-
station, he used the company’s assets and personnel to develop a “new logistics app and platform”
to manage the food deliverers, known as riders, and, once that app was completed, transferred the
app, the rider database, and Hungerstation personnel to a company he had created (and served as
CEO for) called Fast Choice LLC, which does business under the name Pace. Id. at 9 (internal
to address the issue” have determined that a magistrate judge may dispose of “Section 1782 discovery motions” by
order rather than by report and recommendation and collecting cases).
3
Hungerstation, LLC, which is the sole and wholly-owned subsidiary of Hungerstation SPC Ltd., is known in some
of the papers as “OpCo” or “the OpCo,” presumably because it is the company that operates the Hungerstation app
and online platform. ECF No. 2-4 at 7; ECF No. 2-5 at 7–8. For the purposes of this decision, the Court need not
distinguish among the parent, the subsidiary, and the app/platform, and therefore refers to all three as “Hungerstation.”
2
quotation marks omitted); see also id. at 161–64. He then allegedly ensured that all of Hunger-
station’s deliveries were made by Pace, which charged a “heavily inflated ‘Cost Per Order,’ strip-
ping profits out of [Hungerstation] and siphoning them to Pace.” Id. at 9; see also id. at 350–53.
According to FDH, Mr. Al-Jassim continues to hold an indirect financial stake in Pace through his
cousin. Id. at 259. Mr. Al-Jassim denies both that he is employed by or otherwise involved in the
management of Pace and that he has any financial stake, whether direct or indirect, in Pace. ECF
No. 2-7 at 61.
Meanwhile, in September 2019, Hungerstation filed an action in the U.S. District Court for
the Northern District of California against Pace alleging misappropriation of trade secrets, com-
puter fraud, and other causes of action. See ECF No. 1-8; ECF No. 2-4 at 254–55; see generally
Hungerstation LLC v. Fast Choice LLC, No. 19-cv-5861, 2020 WL 137160 (N.D. Cal. Jan. 13,
2020). The district court dismissed the case for lack of personal jurisdiction over Pace, see Hun-
gerstation, 2020 WL 137160, at *1, the plaintiff appealed (ECF No. 1-9), and the Ninth Circuit
affirmed (Hungerstation LLC v. Fast Choice LLC, __ F. App’x __, 2021 WL 1697886 (9th Cir.
2021). DeWitty represented Pace in the district court and the Ninth Circuit. ECF No. 1-8; ECF
No. 1-9. Additionally, Hungerstation filed successful takedown requests with Apple and Google
seeking removal of the Pace app from their app stores as infringing on Hungerstation’s copyrighted
source code. ECF No. 2-4 at 252–54. FDH alleges that DeWitty represented Pace in those
takedown proceedings. ECF No. 2-2 at 11.
Prior to filing its application with this Court, FDH, through counsel, sought to obtain, in-
formally, from DeWitty:
any written communication between [DeWitty’s principal, Robert DeWitty] and/or
personnel associated with [DeWitty] and Mr. Al-Jassim (or any of his representa-
tives, including but not limited to his personal lawyer and proxy Mr. Patrick Rogers
3
as well as anyone from Mr. Rogers’ law firm Support Legal in Abu Dhabi, United
Arab Emirates) related to [DeWitty’s] ongoing representation of Pace.
ECF No. 2-8 at 2–3. Mr. DeWitty responded that “any discussions [he] held with [Pace] and
associated officials were on the basis of legal representation” and thus privileged. ECF No. 2-9 at
2. Counsel for FDH responded that he was “not suggesting that [Mr. DeWitty] waive the attorney-
client privilege,” but rather sought “only [ ] the firm’s communications with . . . Mr. Ebrahim Al-
Jassim, not with [Pace].” ECF No. 2-10 at 2. He continued that, if it was Mr. DeWitty’s position
that all of his communications with Mr. Al-Jassim were privileged, “[t]he issue . . . then would be
whether to seek a subpoena and insist on a privilege log.” Id. Mr. DeWitty did not respond.
FDH filed its application in this Court in January 2021 seeking the issuance of a subpoena
against DeWitty, and served it on DeWitty. ECF No. 1; ECF No. 3. The proposed subpoena seeks
from DeWitty such things as correspondence between the law firm and Mr. Al-Jassim related to
the takedown proceedings, to Northern District of California proceedings, and to Ninth Circuit
proceedings; documents executed by Mr. Al-Jassim, provided by the firm to Mr. Al-Jassim, or
provided by Mr. Al-Jassim to the firm related to the formation or operation of Pace; communica-
tions between the firm and Mr. Al-Jassim reflecting Mr. Al-Jassim’s financial interest in Pace or
participation in any decision-making on behalf of Pace; and agreements between the firm and Mr.
Al-Jassim related to the firm’s representation of Pace. ECF No. 2-3 at 13–14. The subpoena also
seeks communications and documents exchanged between DeWitty and Support Legal. Id. at 14–
15. It further seeks to depose DeWitty on similar topics. Id. at 15–16.
DeWitty failed to oppose the application or its accompanying motion to seal within two
weeks of being served, as required by Local Civil Rule 7(b). The Court therefore issued an Order
requiring DeWitty to show cause why FDH’s “application for an order under 28 U.S.C. § 1782 to
issue the proposed subpoena and/or [FDH’s] motion to seal should not be granted.” ECF No. 8 at
4
1–2. DeWitty timely filed its response, which asserts that, DeWitty’s principal, Robert DeWitty,
through his representation of Pace, “has attorney-client privileged information that is simultane-
ously related to Mr. Al-Jassim and Pace” and argues that the subpoena should not be issued be-
cause it seeks production of “attorney-client and privileged communications which cover 1) liti-
gation strategy, 2) attorney though[t] processes, 3) attorney work product, 4) observations about
the parties, the law firms, and the Judges involved, 5) motions strategies, and 6) confidential client
information” ECF No. 11 at 2–3. He further affirmed that he “did not play a role in any takedown
proceedings relating to Pace and third-party server operations.” ECF No. 11-4 at 1.
FDH responded that DeWitty’s blanket assertion of privilege is both premature and that it
fails to properly allege that all responsive documents or communications would be privileged be-
cause it does not establish that such material comprised “confidential communications from clients
to their attorneys made for the purpose of securing legal advice or services” or “communications
from attorneys to their clients” that “rest on confidential information obtained from the client.”
ECF No. 13 at 4 (quoting Tousari v. DOJ, 78 F. Supp. 3d 332, 345 (D.D.C. 2015)). Therefore,
“[o]nly a document-by-document claim of privilege will allow FDH meaningfully to dispute the
existence of any privilege, or to show a waiver or other exception.” ECF No. 13 at 4. The Court
held a hearing with the parties on the issue of DeWitty’s privilege assertion on May 7, 2021. No-
tably, at that hearing, FDH agreed to narrow its request to the following: all communications or
records involving Mr. Al-Jassim, his counsel, Patrick Rogers, and/or Support Legal, Mr. Rogers’
law firm.
II. DISCUSSION
A two-stage inquiry informs whether a federal court will grant a motion under section 1782.
First, the court must determine whether it can order the requested relief—that is, whether it has
5
the authority to do so; second, it must decide whether it should order the requested relief—that is,
whether exercising its discretion to do so would further the statue’s “twin aims of ‘providing effi-
cient assistance to participants in international litigation and encouraging foreign countries by ex-
ample to provide similar assistance in our courts.’” Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241, 252, 255 (2004) (quoting Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d
664, 669 (9th Cir. 2002)).
As to the first step, “[a] district court has the authority to grant an application when . . . (1)
the person from whom discovery is sought resides or is found within the district; (2) the discovery
is for use in a proceeding before a foreign or international tribunal; and (3) the application is made
by an interested person.” In re Veiga, 746 F. Supp. 2d 8, 17 (D.D.C. 2010) (citing 28 U.S.C. §
1782(a)). The second step is informed by the following four factors outlined in Intel: (1) whether
the target of the discovery request is a participant in the foreign or international proceeding, (2)
the nature of the foreign tribunal and character of its proceedings, (3) whether the application is an
attempt to “circumvent foreign proof-gathering restrictions or other policies,” and (4) whether the
request is “unduly intrusive or burdensome.” Id. (quoting Intel, 542 U.S. at 264–65). The Court
will address each step of the two-step inquiry in turn.
A. The Court’s Authority to Grant FDH’s Application
As a threshold matter, DeWitty does not argue that this Court does not have the authority
to grant FDH’s discovery request—that is, DeWitty does not argue that it is not located in this
Court’s jurisdiction, that the discovery FDH seeks is not for use in a foreign proceeding, or that
FDH is not an interested party in that proceeding. See generally ECF Nos. 11, 17. Indeed, the
first and third factors are easily met here. DeWitty is located in Washington, D.C., so it “is found
within th[is] district” and FDH is an interested person because it is a party to the DIFC-LCIA
6
arbitration, which is the relevant foreign proceeding. ECF No. 2-2 at 13–14; see Intel, 542 U.S. at
256 (“No doubt litigants are included among, and may be the most common example of, the ‘in-
terested person[s]’ who may invoke § 1782.” (alteration in original)).
The second factor—whether the discovery is for use in a proceeding before a foreign or
international tribunal—was not as clearly established by FDH’s application. Specifically, FDH’s
application failed to adequately address the issue of whether the DIFC-LCIA foreign arbitration is
properly considered a “foreign or international tribunal.” There is currently a Circuit split regard-
ing whether parties to private arbitrations, as opposed to state-sponsored arbitration, are authorized
to utilize section 1782 to obtain discovery for use in those proceedings. The Second Circuit has
held that they are not. See In re Guo, 965 F.3d 96, 104–108 (2d Cir. 2020). The Seventh Circuit
and the Fifth Circuit agree. See Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689, 690 (7th Cir.
2020) (“[W]e join the Second and Fifth Circuits in concluding that § 1782(a) does not authorize
the district courts to compel discovery for use in private foreign arbitrations.”); Republic of Ka-
zakhstan v. Biedermann Int’l, 168 F.3d 880, 883 (5th Cir. 1999); see also In re Storag Etzel GmbH,
No. 19-mc-209, 2020 WL 1849714, at *3 (S.D. Fla. Apr. 3, 2020) (“In conclusion, although not
without doubt, I find that the term ‘tribunal’ in § 1782(a) does not encompass private arbitral bod-
ies. Accordingly, Storag has failed to meet the statutory requirements of § 1782(a) and I will deny
its application.”). The Sixth Circuit disagrees. See In re Application to Obtain Discovery for use
in Foreign Proceedings, 939 F.3d 710 (6th Cir. 2019) (holding that a private arbitration constituted
a foreign or international tribunal). 4 The D.C. Circuit does not appear to have weighed in on this
issue. Accordingly, the Court must determine whether the DIFC-LCIA is properly considered a
4
The Sixth Circuit appeared to assume that arbitration before the DIFC-LCIA was private, rather than state-sponsored
arbitration. See generally In re Application, 939 F.3d 710. It does not appear that either party challenged that as-
sumption, so the issue before this Court—whether arbitration before the DIFC-LCIA is private or state-sponsored—
was not considered in the Sixth Circuit’s opinion. Id.7
private or state-sponsored arbitral tribunal. If the Court determines that the DFIC-LCIA is a pri-
vate arbitral tribunal, then the Court must further decide whether section 1782 extends to private
arbitration. Because FDH failed to address this question in any depth, the Court ordered the parties
to submit supplemental briefs on the issue. ECF No. 15.
FDH argues in its supplemental brief that this Court need not pick a side of the Circuit split
because the DIFC-LCIA arbitration in Dubai is not private, but instead is state-sponsored. ECF
No. 16 at 11. Thus, FDH argues that section 1782 authorizes discovery for use in the DIFC-LCIA
arbitration even under the narrower interpretations of the Second, Fifth, and Seventh Circuits. ECF
No. 16 at 9. DeWitty filed a supplemental brief, reiterating its claims of attorney-client privilege,
but did not address the issue of whether the DIFC-LCIA is a proceeding for which section 1782
authorizes discovery, as it was directed to do. See ECF No. 17. Upon review of FDH’s supple-
mental brief, the undersigned finds that, as with the first and third factors, FDH has satisfied the
second, and final, factor necessary for determining whether the Court has the authority to grant its
application under section 1782.
Determining whether an arbitral body is state-sponsored or private is not always clear. Two
cases are instructive for the analysis here. In In re Guo, the Second Circuit considered whether
the China International Economic and Trade Arbitration Commission (“CIETAC”) was a state-
sanctioned or private tribunal. 965 F.3d at 107–08. The court noted that a single factor does not
make a tribunal state-sanctioned or private, but instead considered the degree of state affiliation,
the degree of state authority to intervene in arbitration, and the jurisdiction of the arbitral panel.
Id. at 107–08. The court concluded its analysis by finding that the CIETAC, although “originally
created through state action,” had “subsequently evolved” and “no longer qualifie[d] as
8
a . . . ‘state-sponsored adjudicatory bod[y]’” because there was no affiliation with the Chinese gov-
ernment, the ability of the government and courts to intervene in the arbitration was limited, and
the jurisdiction of the arbitral panel was created solely by parties’ agreements. Id. at 107–08 (last
alteration in original). In a similar analysis, the Fourth Circuit considered whether an arbitration
panel in the United Kingdom was state-sponsored or private for the purposes of a section 1782
application. Servotronics v. Boeing Co., 954 F.3d 209, 214 (4th Cir. 2020). The court first noted
that the arbitration at issue was governed by the U.K. Arbitration Act, which “provides a compre-
hensive regulation of arbitration and its procedures.” Id. The court also considered certain specific
regulations, such as courts’ ability to stay legal proceedings in favor of arbitration, remove an
arbitrator, determine questions of law raised during arbitration, and review arbitration awards. Id.Based on those laws and regulations, the Fourth Circuit concluded that the arbitration was “sanc-
tioned, regulated, and overseen by the [U.K.] government and its courts” and therefore “a product
of ‘government-conferred authority[ ]’ under UK law.” Id. at 214. Accordingly, the Fourth Circuit
found that even under “the more restrictive definition of ‘foreign or international tribunal’ adopted
by [the Second and Fifth Circuits] . . .—that the term refers only to ‘entities acting with the au-
thority of the State’—[they] would conclude that the UK arbitral panel . . . meets that definition.”
Id. at 214.
So too here. The DIFC-LCIA is a joint venture of the Dubai International Financial Center
and the London Court of International Arbitration. ECF No. 16 at 11–12. The DIFC itself was
established by a United Arab Emirates decree. Id. The Arbitration Institute, which is part of the
DIFC, was created by statute, is funded by the Dubai government, and is governed by a board of
trustees appointed by the Dispute Resolution Authority, one of the three “pillars” of the DIFC. Id.9
at 11–12. The DIFC’s Arbitration Institute staffs the DIFC-LCIA, including legal counsel, case-
work managers and administrators, and office managers. Id. Additionally, UAE courts have the
authority under the UAE’s Federal Arbitration Law to appoint arbitrators, adjudicate arbitration
issues, including jurisdictional determinations and procedural issues, and can assist in taking evi-
dence and intervening to ensure the compliance of defiant parties. Id. at 13. Like the arbitration
in the Fourth Circuit’s Servotronics case, all of this suggests that the DIFC-LCIA in Dubai is
“sanctioned, regulated, and overseen by” the UAE government, making it a “foreign or interna-
tional tribunal” even under the narrower definitions adopted by the Second, Fifth, and Seventh
Circuits. Id.Accordingly, the Court has the authority to grant FDH’s discovery request and the remain-
ing analysis will focus on whether it should exercise its discretion to grant FDH’s application.
B. Whether the Court Should Grant FDH’s Request
FDH asserts that the four Intel factors counsel in favor of its application, arguing that (1)
DeWitty is not a participant in the DIFC-LCIA arbitration and thus is beyond the reach of the
tribunal, (2) section 1782 is routinely used for discovery in aid of foreign or international arbitra-
tion, (3) the DIFC-LCIA Arbitration Rules do not prohibit evidence gathering under section 1782,
and (4) its application is not unduly intrusive or burdensome because the documents sought are
within DeWitty’s control and its request is narrowly tailored. ECF No. 2-2 at 14–16. In response,
DeWitty engages neither FDH’s arguments nor the Intel factors. Instead, DeWitty argues that
FDH’s application should be denied because the information it seeks is protected by the attorney-
client privilege. See generally ECF Nos. 11, 17. For the reasons that follow, the Court finds that
the four Intel factors weigh in favor of granting FDH’s application and will permit FDH to seek
10
discovery from DeWitty, subject to any specific claims of privilege detailed in a privilege log
produced by DeWitty.
1. The Jurisdictional Reach of the DIFC-LCIA
The first discretionary Intel factor—whether the person or entity from whom discovery is
sought is a participant in the foreign proceedings—weighs in favor of granting FDH’s application.
Intel, 542 U.S. at 264. DeWitty is not a party in the foreign proceedings. So, there is no reason to
believe that DeWitty is within the jurisdictional reach of the DIFC-LCIA, or even the UAE courts,
which are empowered to assist the DIFC-LCIA when parties are defiant. See Intel, 542 U.S. at
264 (“A foreign tribunal has jurisdiction over those appearing before it, and can itself order them
to produce evidence. In contrast, nonparticipants in the foreign proceedings may be outside the
foreign tribunal’s jurisdictional reach; hence, their evidence, available in the United States, may
be unobtainable absent [section] 1782(a) aid.” (internal citations omitted)). Accordingly, this first
Intel factor weighs in favor of granting FDH’s application.
2. The Nature and Receptivity of the Foreign Tribunal and Character of the
Proceedings
The next Intel factor calls for an assessment of “the nature of the foreign tribunal, the char-
acter of the proceedings underway abroad, and the receptivity of the foreign government or the
court or agency abroad to U.S. federal court judicial assistance.” Intel, 542 U.S. at 264. To prevail
on this factor, “[t]he party resisting discovery must point to ‘authoritative proof’ that the foreign
tribunal would reject the evidence sought.” In re Veiga, 746 F. Supp. 2d at 23–24 (quoting In re
Application of Caratube Int’l Oil Co., 730 F. Supp. 2d 101, 106 (D.D.C. 2010)). As noted,
DeWitty did not mention the Intel factors let alone argue that the DIFC-LCIA would reject the
evidence FDH seeks here. See generally ECF Nos. 11, 17. Regarding the nature of the foreign
tribunal and the character of the proceedings, FDH notes that courts have routinely granted section
11
1782 applications in aid of foreign arbitration proceedings. See ECF No. 2-2 at 15. In contrast,
DeWitty, again, has provided nothing to suggest the nature and character of the DIFC-LCIA pro-
ceedings would weigh against granting FDH’s application. See, e.g., In re Barnwell Enters., 265
F. Supp. 3d 1, 11–12 (D.D.C. 2017) (providing examples where nature and character would weigh
against granting a section 1782 application, such as where the proceedings are the type that would
otherwise bar the petitioner from presenting evidence and engaging in discovery, or where the
proceedings involved “bargained-for expectations” setting procedural and discovery rules for the
proceeding). Accordingly, the Court finds that this Intel factor weighs in favor of granting FDH’s
application.
3. Circumvention of Foreign Proof-Gathering Restrictions or Other Foreign
Policies
The next Intel factor instructs the Court to consider whether FDH’s section 1782 applica-
tion “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States.” Intel, 542 U.S. at 264–65. FDH explains that the DIFC-
LCIA Arbitration Rules “[do not] prohibit[ ] the gathering of evidence via Section 1782, and the
arbitral tribunal has given no indication that it would not be receptive to evidence obtained under
U.S. law.” ECF No. 2-2- at 15–16 (italics omitted). Nor could the undersigned find anything in
the DIFC-LCIA’s rules suggesting FDH’s application would circumvent any rule or policy gov-
erning the proceedings. DeWitty also does not argue that FDH is attempting to circumvent any
law or policy of the UAE or the DIFC-LCIA governing evidence. See generally ECF Nos. 11,
17. Absent any argument from DeWitty on this factor, the Court has no reason to believe FDH is
doing anything other than seeking to obtain discovery in the possession of a non-party located in
the District of Columbia to use in a foreign proceeding. Accordingly, this Intel factor weighs in
favor of granting FDH’s application.
12
4. The Scope of Petitioners’ Discovery Request
The final Intel factor provides that “unduly intrusive or burdensome requests may be re-
jected or trimmed.” Intel, 542 U.S. at 265. Recall that, at the May 7, 2021 hearing, FDH agreed
to narrow its request to the following: all communications or records involving Mr. Al-Jassim, his
counsel, Patrick Rogers, and/or Support Legal, Mr. Rogers’ law firm. At the hearing, DeWitty
maintained his assertion of attorney-client privilege and FDH maintained that DeWitty must pro-
duce a privilege log to support such assertions. Courts have considered the necessity of creating a
privilege log as part of an “undue burden” analysis under Intel. For example, in In re Application
for an Order Pursuant to 28 U.S.C. § 1782, this Court concluded that attorney-client privilege was
properly asserted as a defense against a section 1782 application where the documents sought
“were framed precisely to cover such privileged communications and documents” because “the
discovery request [was] predicated on the petitioners’ belief that [the party’s] counsel was involved
in corrupting the administration of justice in [certain] proceedings.” 286 F. Supp. 3d 1, 6–7
(D.D.C. 2017). The Court further explained that it would not require a privilege log to justify the
assertion of attorney-client privilege because the application sought “documents generated by over
a decade of represent[ation],” making the creation of a privilege log unduly burdensome. Id. at
7–8 (emphasis added). In addition, the Court found that the relevance of the discovery sought to
the foreign proceedings was “thin,” “tenuous,” and of “limited usefulness.” Id. at 4. Similarly, in
Dell Inc. v. DeCosta, this Court considered a request directed at former legal counsel for “[a]ll
documents . . . that refer or relate to any license, proposed license, settlement agreement, proposed
settlement agreement, or negotiations regarding any license or settlement agreement related to the
Patents-in-Suit . . . in which any or all of the Counter-Defendants have included or considered
13
including a provision regarding or referencing Dell.” 233 F. Supp. 3d 1, 3 (D.D.C. 2017) (altera-
tions in original). The Court found that granting such a request “would impose an undue and
disproportionate burden on Defendants to prepare a privilege log of the thousands of documents
that Defendants would reasonably be expected to ‘possess’ after a decade of . . . representation[,]
. . . most of which would be protected by the attorney-client privilege.” Id. at 3–4 (emphasis
added).
Here, although some of the documents FDH seeks from DeWitty may be privileged,
DeWitty has not suggested that creation of a privilege log would be unduly burdensome. See
generally ECF Nos. 11, 17. Indeed, at the hearing, DeWitty stated that he has represented Pace
for approximately three years and that the case files that may contain responsive records consist
of roughly three folders, with a few hundred documents in each. This case is thus distinguishable
from In re Application and Dell, which both involved a decade or more of representation and
thousands of potentially responsive documents. And given that FDH has narrowed its request, it
appears to the Court that only a handful of search terms would be necessary to search for respon-
sive electronic documents—“Ebrahim Al-Jassim,” “Patrick Rogers,” “Support Legal,” and various
other forms of those names. The Court will not simply assume that creation of a privilege log
would be unduly burdensome absent evidence from DeWitty on the issue. In addition, unlike the
discovery sought in In re Application, which was only tenuously related to the foreign proceedings,
the discovery sought here goes to one of the principal issues before the DIFC-LCIA—specifically,
whether Mr. Al-Jassim is involved in Pace’s management and operation. ECF No. 2-2 at 14.
Accordingly, without more than DeWitty’s blanket assertion of privilege, the Court cannot find
that this Intel factor weighs against granting FDH’s application or that DeWitty has, at this time,
successfully asserted attorney-client privilege. See In re Veiga, 746 F. Supp. 2d at 26 (concluding
14
that “the parties’ [ ] arguments concerning privilege [were] premature” and that “[the] [c]ourt
simply [was] not in a position to resolve blanket claims of privilege and waiver”).
III. CONCLUSION
Based on the above, the Court will grant FDH’s section 1782 application and instruct
DeWitty to comply with FDH’s document requests, as narrowed by FDH at the hearing on May 7,
2021. To the extent DeWitty believes that any of the documents sought are protected by the attor-
ney-client privilege, it shall provide a privilege log justifying withholding that information.
For the foregoing reasons, FDH’s section 1782 application (ECF No. 1), as narrowed by
FDH at the hearing on May 7, 2021, is GRANTED. As discussed at the hearing, DeWitty is
hereby ORDERED to produce any non-privileged responsive documents and a detailed privilege
log of any responsive privileged documents to FDH by May 17, 2021. 5 Any deposition of DeWitty
shall await further order of the Court.
5
To be clear, the Court does not direct DeWitty to provide anything to FDH that is privileged or that would violate
any ethical duty that DeWitty may have to a client. Typically, creation of a privilege log would not raise such con-
cerns. At the hearing, however, FDH stated that its receipt of a privilege log from DeWitty alone may be helpful in
its effort before the DIFC-LCIA to show that Mr. Al-Jassim is involved with Pace. To the extent that DeWitty believes
that providing a privilege log to FDH may violate an ethical duty to a client, see, e.g., D.C. Rule of Professional
Conduct 1.6(a)(“[A] lawyer shall not knowingly (1) reveal a confidence or secret of the lawyer’s client; (2) use a
confidence or secret of the lawyer’s client to the disadvantage of the client; [or] (3) use a confidence or secret of the
lawyer’s client for the advantage of . . . a third person.”), or may itself disclose privileged material, see Cause of Action
Institute v. DOJ, 330 F. Supp. 3d 336, 350–51 (D.D.C. 2018) (finding, after in camera review, that the identity of a
client itself can be privileged where revealing the client’s identity would “disclose that the [client] acted on a particular
‘motive . . . in seeking representation,” and would thus shed light on the ‘nature of the legal services rendered[,]’” and
in turn concluding that otherwise non-confidential documents revealing the client’s identity could be withheld) (ellip-
ses in original) (first quoting United States v. Naegele, 468 F. Supp. 2d 167, 171 (D.D.C. 2007), then Berliner Corco-
ran & Rowe LLP v. Orian, 662 F. Supp. 2d 130, 134 (D.D.C. 2009)); see also In re Grand Jury Subpoena, 926 F.2d
1423, 1432 (5th Cir. 1991) (reviewing documents in camera and finding that attorney could withhold the identity of
his client pursuant to attorney-client privilege where revealing the client’s identity would expose the client’s confi-
dential motive in hiring the attorney), then DeWitty may file the privilege log on the docket under seal for the Court’s
in camera ex parte review in lieu of providing the log to FDH. If DeWitty does seek the Court’s in camera ex parte
review, it must establish, in writing, that such a review is necessary. If DeWitty does not seek in camera review of
the privilege log, then it need not file the privilege log on the docket and should instead provide the privilege log
directly to FDH.
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Digitally signed by
G. Michael Harvey
Date: 2021.05.10
12:09:19 -04'00'
Date: May 10, 2021 ___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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