In Re: Application of International Mineral Resources B v. for an Order to Take Discovery Pursuant to 28 U.S.C.1782

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE:
APPLICATION OF INTERNATIONAL
MINERAL RESOURCES B.V. FOR AN
ORDER TO TAKE DISCOVERY
PURSUANT TO 28 U.S.C. § 1782,
Applicant. Civil Action No. 14-mc-340(GK)
MEMORANDUM OPINION
Applicant International Mineral Resources B. V. ( "IMR" or
"Applicant") has asked this Court to compel Rinat Akhmetshin ("Mr.
Akhmetshin" or "Respondent") to produce certain documents and sit
for an additional day of deposition. In the alternative, IMR asks
the Court to review the requested documents in camera to determine
whether they should be disclosed. Mr. Akhmetshin and Intervenor
Eurochem Volga-Kaliy LLC ( "ECVK" or "Intervenor") oppose IMR' s
requests. Upon consideration of the Motion [Dkt. No. 27],
Oppositions [Dkt. Nos. 38, 39], Reply [Dkt. No. 43], and the entire
record herein, and for the reasons stated below, IMR's Motion shall
be granted in part and denied in part.
I . BACKGROUND
On April 3, 2014, IMR filed an Application for an Order to
Take Discovery Pursuant to 28 U.S. C. § 1 782 ("Application") [Dkt.
No. 1] authorizing it to depose and request documents from Rinat
Akhmetshin, a resident of the District of Columbia. IMR intended
to use any evidence obtained from Mr. Akhmetshin in ongoing court
proceedings in the Netherlands (the "Dutch Action"). Id.
On June 27, 2014, IMR provided the Court with a Notice [Dkt.
No. 16] that it had prevailed in the Dutch Action before the
relevant court of first instance (or trial court) . IMR maintained,
however, that its Application was not moot because, among other
reasons, Dutch courts allow the introduction of new evidence on
appeal. Id.
On September 23, 2014, this Court issued a Memorandum Order
[Dkt. No. 17] denying IMR's Application without prejudice. The
Court concluded that the Application was premature because it was
not known whether either party would take advantage of the
opportunity to submit additional evidence on appeal in the Dutch
court system ("Dutch Appeal"). Id.
On October 30, 2014, IMR submitted its Motion to Renew its
Application for 28 U.S.C. § 1782 Discovery [Dkt. No. 18], noting,
inter alia, that it hoped to use evidence discovered from Mr.
Akhmetshin in the Dutch Appeal.
On February 5, 2015, the Court granted IMR's· Renewed
Application for an Order under 28 U.S.C. § 1782 Permitting
International Mineral Resources B.V. to Issue a Subpoena for the
Taking of a Deposition and the Production of Documents from Rinat
Akhmetshin [Dkt. No. 22].
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On April 7, 2015, at IMR's deposition of Mr. Akhmetshin,
following the advice of counsel, he de,clined to answer a number of
questions on grounds of privilege. Mr. Akhmetshin has also declined
to produce a number of requested documents (primarily on grounds
of privilege, although he also contends that some requested
documents are not relevant to this proceeding) .
On May 18, 2015, IMR filed its Motion to Compel Production of
Documents and Additional Day of Deposition.
On May 28, 2015, ECVK, a party to the Dutch Action and Dutch
Appeal, filed a Motion to Intervene [Dkt. No. 30] for the limited
purpose of responding to applicant IMR's pending Motion to Compel.
On June 10, 2015, the Parties indicated that IMR had consented to
ECVK's Motion to Intervene, and on June 12, 2015, the Court granted
the·Motion to Intervene [Dkt. No. 37].
On June 5, 2015, IMR submitted a Status Report stating that
its submission in the Dutch Appeal was due on June 23, 2015, 1 and
requesting a Status Conference.
On June 11, 2015, the Court held a Status Conference.
On June 18, 2015, Respondent and Intervenor filed their
Oppositions to Applicants's Motion to Compel, and on June 25, 2015,
Applicant filed its Reply.
1 The briefing schedule proposed by the Parties set the due date
for Applicant's Reply on June 25, 2015. However, none of the
Parties has indicated whether anything has been decided in the
Dutch Appeal or that this Motion has become moot.
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II. ANALYSIS
IMR seeks an order compelling Mr. Akhmetshin to produce 261
documents that he has withheld on grounds of privilege and
relevance and to sit for an additional day of deposition.in order
to respond to questions he refused to answer in his initial
deposition on April 7, 2015. Mr. Akhmetshin relies on the non-
testifying expert witness privilege codified at Fed. R. Civ. P.
26 (b) (4) (D), attorney-client privileg,e, and the scope of IMR' s
initial Application [Dkt. No. 1] to shield all but two of the 263
requested documents listed on his privilege log. 2 See Revised
Privilege Log, Applicant's Ex. A [Dkt. No. 27-2].
Intervenor ECVK also opposes IMR's Motion to Compel. It notes,
however, that "34 [of the 261 documents] are not subject to any
privileges that belong to [it]" and thus "defers to Mr. Akhmetshin
about whether to produce those documents [.]" Intervenor's Opp' n
at 2.
A. Non-testifying Expert Witness Privilege
Federal Rule of Civil Procedure 26 (b) (4) (D) applies to an
"expert who has been retained or specially employed by another
party in anticipation of litigation or to prepare for trial and
who is not expected to be called as a witness at trial" ("non-
testifying experts"). Fed. R. Civ. P. 26 (b) (4) (D) "Experts in
2 Mr. Akhmetshin has produced Revised Privilege Log entries 226
and 227, having determined that they were not privileged.
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this category are treated very differently from those who are
expected to be called at trial." Charles Alan Wright & Arthur R.
Miller, § 2032 Expert Witnesses-Discovery as to Specially-Retained
Experts Who Will Not Be Called, 8A Fed. Prac. & Proc. Civ. § 2032
(3d ed.). The Rule provides that:
Ordinarily, a party may not, by interrogatories or
deposition, discover facts known or opinions held by [a
non-testifying expert] . [A] party may do so only: (i) as
provided in Rule 35(b) 3 ; or (ii) on showing exceptional
circumstances under which it is impracticable for -the
party to obtain facts or opinions on the same subject by
other means.
Fed. R. Civ. P. 26 (b) (4) (D).
In order to preclude an otherwise valid discovery request,
"the proponent must establish the claimed privilege with
'reasonable certainty:"' In re Veiga, 746 F.Supp. 2d 27, 33 (D.D.C.
2010) (quoting In re Subpoena Duces Tecum Issued to Commodity
Futures Trading Comm'n, 439 F.3d 740, 750-51 (D.C. Cir. 2006).
Respondent contends that he has established with reasonable
certainty that he is a non-testifying expert covered by Rule
26 (b) (4) (D), and therefore, that the documents and testimony
Applicant seeks are privileged.
IMR does not rely on either of the exceptions contained in
Rule 26 (b) (4) (D) physical or mental examinations and
3 Rule 35 deals with physical and mental examinations where a
party's "mental or physical condition . is in controversy [,]"
Fed. R. Civ. P. 35(a) (1), and therefore, is not relevant.
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"exceptional circumstances" to contest Mr. Akhmetshin's
assertion of privilege. Instead, IMR contends that
Mr. Akhmetshin' s privilege log lacks the detail necessary to
demonstrate that any of the documents he has withheld· actually
relate to his work as a non-testifying expert witness. See Revised
Privilege Log, Applicant's Ex. A.
Upon the record before it, the Court has little trouble
concluding that Mr. Akhmetshin served· as a non-testifying expert
for ECVK in connection with the Dutch Action. See e.g., Deel. of
Patrick Salisbury at ~~ 48-68 [Dkt. No. 39-4]. The Court need not
conclude whether Mr. Akhmetshin has put forth sufficient grounds
to withhold each and every document under Rule 26 (b) (4) (D) because,
as explained below, the crime-fraud exception to the non-
testifying expert privilege necessitates in camera review of all
documents withheld under Rule 26(b) (4) (D).
B. Crime-Fraud Exception
IMR contends that even if some of Mr. Akhmetshin's documents
would ordinarily be protected by Rule 26(b) (4) (D), the crime-fraud
exception to assertions of privilege requires disclosure in this
case.
In order to overcome an otherwise valid privilege with the
crime-fraud exception, the party seeking discovery must put forth
"more than mere allegations of wrongdoing." Tri-State
Hospital Supply Corp. v. United States, 238 F.R.D. 102, 104 (D.D.C.
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2006). "To drive the privilege away, there must be something to
give col [or] . to the charge; there must be prima facie evidence
that it has some foundation in fact." Id. (internal quotation marks
and citations omitted) . "This burden does not have to be
established entirely with independent evidence-the documents
themselves are commonly the best evidence available." Id. (citing
United States v. Zolin, 491 U.S. 554, 567 (1989)).
A party "satisfies its burden of proof if it offers evidence
that if believed by the trier of fact would establish the elements
of an ongoing or imminent crime or fraud." In re Sealed Case, 754
F.2d 395, 399 (D.C. Cir. 1985).
The standard for allowing in camera review is less demanding:
"Before engaging in in camera review to determine the applicability
of the crim~-fraud exception, the judge should require a showing
of a factual basis adequate to support a good faith belief by a
reasonable person that in camera review of the materials may reveal
evidence to establish the claim that the crime-fraud exception
applies." Zolin, 491 U.S. at 572 (internal citations and quotation
marks omitted) .
1. Applicability of Crime-Fraud Exception
As a threshold' matter, Respondent contends that the crime-
fraud exception simply does not apply to the non-testifying expert
witness privilege. He contends that "[n]o court has ever held, as
IMR asks this Court to do, that the crime-fraud exception
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invalidates Rule 26(b) (4) (D) immunity." Resp't's Opp'n at 8-9.
Respondent is simply incorrect.
Two cases that grew out of a dispute involving a $27.4 billion
damages award entered against Chevron by an Ecuadorian court both
note the existence of a crime-fraud exception to the non-testifying
expert witness privilege. In re Chevron Corp., 749 F. Supp. 2d
141, 168 (S.D.N.Y. 2010) aff 'd sub nom. Lago Agrio Plaintiffs v.
Chevron Corp., 409 F. App'x 393 (2d Cir. 2010) ("The crime-fraud
exception may vitiate any otherwise applicable protection, as at
least one other court has held in another Section 1782 proceeding
brought by Chevron to obtain discovery from an expert."); Chevron
v. E-Tech Int'l, 2010 WL 3584520 at *6 (S.D. Cal. Sept. 10, 2010)
("[T]he Court is persuaded by the reasons explained by Magistrate
Judge Mccurine as well as other U.S. courts who have addressed the
issue, that the crime-fraud exception applies.").
These cases are among "the many percolating in the
federal courts arising from efforts by Chevron Corporation
and two of its attorneys . . to obtain discovery in the United
States pursuant to 28 U.S.C. § 1782 in aid of defending themselves
against civil litigation and/or criminal prosecution in
Ecuador." Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App' x
393, · 394 (2d Cir. 2010). In both matters, Chevron Corporation
sought the documents of the Ecuadorian Plaintiffs' U.S.
consultants because Chevron had come to believe that an Ecuadorian
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neutral expert witness's report -- which established the massive
damages award had been "copied wholesale from" the U.S.
consultants. Chevron v. E-Tech, 2010 WL 3584520 at *l (S.D. Cal.
Sept. 10, 2010). The U.S. District Court for the Southern District
of California held that the "crime-fraud exception [to the claimed
privileges] applie [d]" because "[t] here [wa] s ample evidence in
the reGord that the Ecuadorian Plaintiffs secretly provided
information to Mr .. Cabrera, who was supposedly a neutral court-
appointed expert, and colluded with Mr. Cabrera to make it look
like the opinions were his own." Id. at 9.
In reply, Mr. Akhmetshin relies on yet another case arising
from the Ecuadorian Chevron matter for the proposition that "only
'exceptional circumstances' could justify piercing the consulting
expert privilege here." Resp't's Opp'n at 9 (citing Chevron Corp.
v. Camp, 2010 WL 3418394, at *6 (W.D.N.C. Aug. 30, 2010)). However,
that case held only that the non-testifying expert privilege had
been waived and says nothing about whether the crime-fraud
exception would apply. Camp, 2010 WL 3418394, at *6.
More recently, the U.S. District Court for the Southern
District of New York has ordered discovery of certain "media
strategy [documents]" and "the conclusions reached by retained
consultants and experts [,]" finding that they were "within the
crime-fraud exception and should be disclosed[.]" U.S. v. Ceglia,
2015 WL 1499194, at *7-*8 (S.D.N.Y. Mar. 30 2015). Indeed, as
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•.
Applicant points out, failure to apply the crime-fraud exception
to non-testifying expert witnesses would be inconsistent with the
rationale behind the crime-fraud exception itself, which is that
a privilege must yield when it is used for corrupt purposes. See
In re Sealed Case, 676 F.2d 793, 807-08 (D.C. Cir. 1982) (documents
that are otherwise privileged will lose that status where "the
privileged relation from which they derive was entered into or
used for corrupt purposes").
Thus, the Court concludes that the non-testifying expert
witness privilege contained in Fed. R. Civ. P. 26(b) (4) (D), like
the attorney-client and work-product privileges, must give way to
the crime-fraud exception.
2. Alleged Misconduct
IMR claims that its "investigators uncovered evidence that
Mr. Akhmetshin, on behalf of ECVK, its parent company EuroChem,
and/or those companies' New York law firm Salisbury & Ryan, hacked
into the computer systems of IMR and its officers and associates,
stole confidential, personal and otherwise sensitive information,
and then disseminated that information in an unlawful attempt to
gain an unfair advantage in the Dutch Action." Applicant's Mot.
at 4. IMR relies on a number of sources to support its allegations.
IMR has put forth evidence "that Mr. Akhmetshin was hired by
Salisbury & Ryan LLP on behalf of ECVK to hack into IMR's computer
systems, steal IMR's confidential information, and disseminate it
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to third parties." Applicant's Reply at 6. To substanti'ate this
allegation, IMR points primarily to the sworn declaration of Akis
Phanartzis who works for a private investigation firm that IMR
hired to follow Mr. Akhmetshin and eavesdrop on his conversations.
See Deel. of Akis .Phanartzis at ~~ 1-12 [Dkt. No. 1-6]. Mr.
Phanartzis claims to have overheard Mr. Akhametshin in a London
coffee shop state that "he [had] organized the hacking of IMR's
computer systems" on behalf of ECVK." Id. at ~~ 10, 14. 4 Among other
things, "Mr. Akhmetshin [noted] that he was hired because there
were certain things that the law firm [Salisbury & Ryan] could not
do . " Id . at ~ 2 1.
In order to further substantiate its hacking allegationsi IMR
points to a thumb drive containing confidential information
belonging to IMR, which it believes Mr. Akhmetshin accessed. IMR
claims to have received the thumb drive, which contains a large
number of the company's sensitive documents, from an anonymous
source. Applicant's Ex. E, Deel. of Raphael Rahav at ~ 7-8 [Dkt.
4 The Declaration is not entirely clear as to whether Mr. Phanartzis
had personal knowledge of all the facts contained therein, stating
only that he is "familiar with the facts set forth in this
Declaration, either from personal knowledge or on the basis of
documents that have been provided to [him]." Id. at ~ 3 (emphasis
added). However, the Declaration recounts the coffee shop incident
in the first person, demonstrating that Mr. Phanartzis was present
for the recounted conversation: "I took a table close to
where Mr. Akhmetshin was sitting. I was sitting at a table
approximately one meter from him, with the goal of hearing any
conversation that might take place." Id. at ~ 11.
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No. 27-6]; Applicant's Ex. F, Deel. of Tadeusz Jarmolkiewicz at ~
12-13 [Dkt. No. 27-7]; Applicant's Ex. L, Deel. of Melanie Maugeri
at ~ 7-9 [Dkt. 27-13]. According to the Declaration of Melanie
Maugeri, a digital forensic examiner retained by IMR, certain files
on the thumb drive were last accessed by a user called "RA," whom
IMR takes to be Rinat Akhmetshin. Ex. L, Deel. of Melanie Maugeri
at ~~ 7-8. Other files, according to Ms. Maugeri's Declaration,
were last accessed by a user called "Scott Horton." Id. Mr.
Akhmetshin has admitted to discussing his work for Salisbury &
Ryan with a man by that name. Revised Privilege Log entries 247,
249, 251-53; Applicant's Ex. H, Tr. at 164-79 [Dkt. No. 27-9].
IMR contends that Mr. Akhmetshin's alleged hacking
constituted a crime under the Computer Fraud and Abuse Act
("CFAA"), 18 U.S.C. § 1030, and the Stored Communications Act, 18
U.S.C. § 2701. However, Applicant also contends that, in addition
to showing evidence of a crime or fraud, it may also meet its
burden with evidence of some "other type of misconduct
fundamentally inconsistent with the basic premises of the
adversary system." In re Sealed Case, 676 F.2d at 812.
Mr. Akhmetshin vigorously contests the truth of IMR's
allegations. He states plainly, "It is not possible that I was
overheard saying that I was turning over documents that I had
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hacked from an IMR or ENRC 5 computer, because I have never done
so, nor do I have the skills to do so." Akhmetshin Delc. at ~ 14
[Dkt. No. 10-1].
Moreover, he contends that the "nature of the conversation"
in the London coffee shop ~should trigger skepticism" because it
"had all the earmarks of a contrivance intended to induce a
boasting statement of capabilities of Mr. Akhmetshin." Resp' t' s
Opp'n at 10. He alleges that "the entrapped conversation
methodology [is] an established [tactic]" used by IMR's preeminent
shareholders, three Russian business magnates known as "the
Troika." Id. at 10-11 (citing Eurasian Natural Resources Corp. v.
Sir Paul Judge, [2014] EWHC 3556 (QB), 2014 WL 5483609 (Oct. 31,
2014) (Mrs. Justice Swift)) .6 The context of this apparent
entrapment, he argues, should cast doubt on the veracity of
Mr. Phanartzis's allegations.
Mr. Akhmetshin also objects to IMR's contentions related to
the thumb drive received from an anonymous source. He states that
materials leaked by officers or directors of ENRC, a company
related to IMR, were already circulating freely on the "London
Information Bazaar," a name the Parties use to describe the
5 ENRC is related to IMR through ownership. The shareholders who
ultimately own IMR were the former owners of ENRC. Ex Parte
Application at 7 n.3 [Dkt. No. 1].
6 Available at http://www.bailii.org/ew/cases/EWHC/QB/2014/3
556.html (last visited July 14, 2015).
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informal market for sensitive financial, political, and other
information that exists in London. Respondent's Opp'n at 12 (citing
Eurasian Natural Resources Corporation, Ltd., 2014 WL 5483609 ~
13) .
Finally, citing Fed. R. Evid. 901, Respondent notes that the
thumb drive would not be admissible as evidence at trial for lack
of a chain of custody.
While Mr. Akhmetshin's concerns are not frivolous, they are
not enough to preclude further review of the documents. IMR must
only set forth a "showing of a factual basis adequate to support
a good faith belief by a reasonable person that in camera review
of the materials may reveal evidence to establish the claim that
the crime-fraud exception applies." Zolin, 491 U.S. at 572(internal citations and quotation marks omitted). It has done so.
The Court concludes that it is impossible to discern from
Mr. Akhmetshin's rather opaque Revised Privilege Log, which
documents may have a nexus to the alleged misconduct. See Privilege
Log [Dkt. No. 27-4]. Accordingly, in order to determine which, if
any, of the documents withheld under the non-testifying expert
privilege are sufficiently linked to the alleged misdeeds to pierce
the asserted privilege, the Court shall review, in camera, all of
the documents for which Mr. Akhmetshin has asserted non-testifying
expert privilege.
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3. ECVK's Responsibility
ECVK claims that the crime-fraud exception cannot pierce the
non-testifying expert privilege asserted here because IMR has put
forward no evidence that ECVK itself engaged in any misconduct.
ECVK claims that its counsel, Salisbury & Ryan, did not "direct
anyone to obtain information from IMR or any of its affiliates in
any improper manner." Intervenor's Opp' n at 22. It notes that
"Salisbury & Ryan's engagement letter with Mr. Akhmetshin
specifically required that he comply with all applicable laws in
the conduct of his research[.]" Id. Finally, ECVK points out that
it had no direct interaction with Mr. Akhmetshin. Rather, its
counsel made the decision to hire him and supervised his work.
However, Mr. Akhmetshin's engagement letter clearly states
that he was hired to work on ECVK's behalf. Akhmetshin Deel., Ex.
A at 1 [Dkt. No. 10-1] ("Salisbury & Ryan LLP, as attorney agent
[sic] for its client [i.e., ECVK] and not in its individual
capacity ., has engaged you to provide the services described
below"). Moreover, Mr. Akhmetshin states in his Opposition that he
was "tolling [for information] on [ECVK's] behalf." Resp't's Opp'n
at 6.
Intervenor relies on In re Sealed Case, 107 F.3d at 50, for
the proposition that IMR must show "that ECVK itself had
unlawful intent[.]" Intervenor's Opp'n at 21. However, as
discussed above, IMR has put forth evidence that Mr. Akhmetshin
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engaged in conduct that could trigger discovery under the crime-
fraud exception within the scope of his duties as ECVK's expert.
See Applicant's Ex. D at ~ 14 [Dkt. No. 27-5] ("Mr. Akhmetshin
stated that he organized the hacking of IMR' s computer systems
specifically on behalf of [ECVK]" (emphasis added)) . In camera
review will allow the Court to determine whether Mr. Akhmetshin
"was on a frolic of his own, against the advice of . counsel,"
In re Sealed Case, 107 F.3d at 50, or whether his actions are
properly attributable to ECVK.
C. Strategic Connnunications
IMR contends that a large number of documents on
Mr. Akhmetshin's privilege log may not be properly withheld under
the non-testifying expert privilege because they relate to a public
relations campaign orchestrated by Mr. Akhmetshin rather than his
expert consulting services.
Respondent and ECVK contend that Mr. Akhmetshin did not engage
in any strategic communications on ECVK's behalf. Rather, they say
that Mr. Akhmetshin submitted only a proposal to lead a public
relations campaign tha.t ECVK swiftly rejected.
Mr. Akhmetshin and ECVK do not argue that strategic
communications or public relations work performed by
Mr. Akhmetshin would be privileged. Instead, they simply contend
that Mr. Akhmetshin' s numerous communications with journalists
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involved research and investigation in his capacity as a non-
testifying expert.
Accordingly, whether the documents sought concern strategic
communications and whether Mr. Akhmetshin performed such work at
all are factual questions that the Court will be able to answer as
part of its in camera review.
D. Communications with Third Parties
IMR next contends that Mr. Akhmetshin must produce any
documents he shared with third parties because third-party
disclosure constitutes a waiver of any otherwise applicable claim
of privilege. The Parties cite conflicting authority as to whether
the non-testifying expert privilege is subject to waiver at all.
Compare White v. Electrolux N. Am., Inc., 2014 WL 1365424, at *2
(N.D. Ill. Apr. 7, 2014) (explaining that "the concept of waiver
is applicable to Rule 26 (b) (4) (D)" because Rule 26 (b) (4) (D) "is
simply an application·of the work product rule") with Precision of
New Hampton, Inc. v. Tri Component Prods. Corp., 2013 WL 2444047,
at *5-6 (N.D. Iowa June 5, 2013) (after surveying cases, finding
that it "appears dubious that the waiver doctrine applies to" the
non-testifying expert privilege) . Another District Judge in this
Circuit has "[found] that while it is unclear whether Rule
26(b) (4) (D) is even subject to waiver, the general trend in other
districts has been to find that it is not." Eidos Display, LLC v.
Chunghwa Picture Tubes, Ltd., 296 F.R.D. 3, 7 (D.D.C. 2013).
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However, the Court need not decide whether the Rule
26(b) (4) (D) privilege is subject to waiver because, as noted above,
the limited detail in Mr. Akhmetshin's Revised Privilege Log makes
it difficult to determine whether particular communications were,
in fact, made in furtherance of his non-testifying-expert role.
Before it can reach the issue of waiver, the Court must first
determine whether the communications at issue would have been
otherwise privileged.
Moreover, our Court of Appeals has stated that whether a
privilege subject to waiver has been waived depends upon whether
the proponent "had a reasonable basis for believing that the
recipient would keep the disclosed material confidential." United
States v. Deloitte LLP, 610 F.3d 129, 141 (D.C. Cir. 2010). Thus,
even if the Court ultimately determines that the non-testifying
expert privilege is subject to waiver, it will have to consider
this additional factual question via in camera review.
E. Lieberman Documents, Attorney-Client Privilege
Respondent contends that a separate category of documents
sought by IMR, which do not directly conc'ern ECVK, are protected
by attorney-client privilege because ·they are communications
between Mr. Akhmetshin and his own personal lawyer~ Edward
Lieberman. 7
7 These documents are listed in the Revised Privilege Log as
numbers 207, 217-222, 224-225, 228-229, 231-232.
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IMR contends that these communications are not privileged
because Mr. Akhmetshin testified at his deposition "that Mr.
Lieberman did not work on the ECVK project and that Mr. Akhmetshin
never sought Mr. Lieberman' s legal advice concerning the ECVK
project, IMR, Shaft Sinkers, or ENRC." ~pplicant's Mot. at 27
(citing Applicant's Ex. H at 113-14 [Dkt. No. 27-9]). After the
deposition, Mr. Akhmetshin amended two of his answers about Mr.
Lieberman's provision of legal advice from "no" to "yes,"
indicating that Mr. Lieberman did, in fact, provide legal advice.
Ltr. Form J. Kauke to U.S. Legal Support, Applicant's Ex. Y [Dkt.
No. 27-26].
"The attorney-client privilege applies where (1) the holder
of the privilege is or sought to be a client; (2) the person to
whom the communication was made is a member of the bar of a court
or his subordinate and in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of
which the attorney was informed by his client without the presence
of strangers for the purpose of securing primarily either an
opinion on law, legal services, or assistance in some legal
proceeding and not for the purpose of committing a crime or tort;
and ( 4) the privilege has been claimed ·and not waived by the
client." Elkins v. D.C., 250 F.R.D. 20, 24 (D.D.C. 2008) (citing
In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)).
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Only prong (3) is at issue. Whether the communications between
Mr. Lieberman and Mr. Akhmetshin were made "for the purpose of
securing primarily [legal advice,]" id., is not entirely clear
from the record. Accordingly, the communications with Mr.
Lieberman must be included in Mr. Akhmetshin's submission for in
camera review.
F. Post-August· 31, 2013 Documents
Respondent claims that Applicant is not entitled to any
documents post-dating August 31, 2013 for two reasons. First,
Respondent notes that reference to any post-August 31 documents
was omitted in IMR's meet and confer statement. Thus, under LCvR
7(m), Applicant's Motion to Compel discovery should be denied with
respect to these documents.
Second, Respondent contends that post-August 31, 2013
documents are outside the scope of IMR's Application. Intervenor
notes that IMR asked this Court for an order to permit discovery
of "a discrete universe of documents and testimony related to Mr.
Akhmentshin's own unlawful efforts on behalf of EuroChem and/or
ECVK." Intervernor's Opp'n at 16 n.8 (citing IMR's 28 U.S.C. §
1782 Application at 17 [Dkt. 1]). August 31, 2013 was three months
after the end of ECVK's retention of Mr. Akhmetshin. Id.Accordingly, documents post-dating August 31, 2013 could not have
any relation to "Mr. Akhmetshin' s efforts on behalf of
EuroChem" -- unlawfull or otherwise.
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Therefore, Applicant's Motion to Compel with respect to
documents created on or after August 31, 2013 shall be denied.
G. Additional Day of Deposition
IMR contends that because Mr. Akhmetshin made overbroad
assertions of privilege at his first deposition, he should be
re~uired to sit for an additional day of de~osition. The Court
agrees.
Mr. Akhmetshin, upon the advice of. counsel, declined to answer
questions about the general subject matter of communications, the
persons present for those communications,' and even the number of
individuals present for those communications. The Court's in
camera review may reveal additional overbroad assertions of
privilege.
Accordingly, the Parties shall work collaboratively to
schedule an appropriate time for the deposition, and Mr. Akhmetshin
shall appropriately answer relevant questions regarding non-
pri vileged informatioh.
IV. CONCLUSION
For the foregoing reasons, IMR's Motion to Compel Production
of Documents and Additional Day of Deposition [Dkt. No. 27] shall
be granted in part and denied in part, and Mr. Akhmetshin shall
submit for in camera review all documents listed on his Revised
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Privilege Log except documents post-dating August 31, 2013 or
documents that have already been produced to opposing counsel.
July 28, 2015
67~.~
GladysKes~
/
United States District Judge
Copies to: attorneys on record via ECF
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