286 F. Supp. 3d 1
D.C. Cir.2017Background
- Petitioners (Hulley Enterprises, Yukos Universal, Veteran Petroleum) sought discovery under 28 U.S.C. § 1782 from Baker Botts and a partner about the firm's communications with long‑time client Rosneft and co‑counsel concerning Armenian and Dutch proceedings tied to the Yukos litigation.
- The requested discovery targeted communications and documents spanning years of Baker Botts’ representation, including alleged contacts with foreign officials and co‑counsel.
- The district court denied the § 1782 application in discretion under the Intel factors, emphasizing undue intrusiveness, privilege/work‑product risks, and limited relevance to the Dutch appellate proceeding.
- Petitioners moved for reconsideration under Rule 59(e), reasserting (1) that respondents waived privilege by not logging documents, (2) that a choice‑of‑law analysis would show foreign law does not protect the materials, and (3) that the crime‑fraud exception applies.
- The court treated the filing as a Rule 59(e) motion (timely) and denied reconsideration, finding no change in controlling law, no new evidence, and no clear error or manifest injustice warranting relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents waived privilege by failing to log privileged documents | Petitioners: respondents failed to identify privileged documents or quantify burden; thus privilege waived | Respondents: requests plainly target privileged communications; invoking privilege objection is effective without producing a full privilege log given the overbreadth and burden | Court: No waiver; objections were sufficient—log not required given scope, burden, and evident attorney‑client nature of materials |
| Whether court must perform choice‑of‑law analysis to apply foreign privilege rules | Petitioners: foreign (Russian/Armenian) law governs and would not protect communications (respondents not registered there) | Respondents: federal common law governs §1782 privilege assertions; foreign privilege applies only in narrow circumstances and hybrid application would produce anomalous results | Court: New choice‑of‑law theory untimely and unpersuasive; U.S. federal privilege law controls; no need to decide foreign law now |
| Whether the crime‑fraud exception negates privilege for requested materials | Petitioners: exhibits (articles, emails, affidavit, draft decisions) show counsel used communications to further fraud/manipulation | Respondents: materials are thin, hacked emails lack context, and allegations do not tie Baker Botts to wrongdoing | Court: Petitioners failed to make a prima facie showing for crime‑fraud exception; materials insufficient to overcome privilege |
| Whether §1782 discovery should be granted in exercise of discretion (Intel factors) / whether denial should be reconsidered under Rule 59(e) | Petitioners: discovery relevant to Dutch appeal and narrow; Court should narrow scope or perform choice‑of‑law analysis | Respondents: requests are overbroad, intrusive, implicate privilege/work product, and impose extraordinary burden for little relevance | Court: Denial affirmed—discretionary Intel analysis supports refusal because undue burden and privilege risks outweigh limited relevance; Rule 59(e) relief not warranted |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (district court may exercise discretion under §1782 using specified factors)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (importance of attorney‑client privilege to encourage full communications)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (crime‑fraud exception standards and context for in camera review)
- In re Grand Jury, 475 F.3d 1299 (D.C. Cir. 2007) (prima facie showing required for crime‑fraud exception)
- Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004) (standards for Rule 59(e) reconsideration; exceptional relief required)
- Patton Boggs LLP v. Chevron Corp., 683 F.3d 397 (D.C. Cir. 2012) (Rule 59(e) not a vehicle for new legal theories)