358 F. Supp. 3d 331
S.D. Ill.2019Background
- Petitioners (Hulley, Yukos Universal, Veteran Petroleum) are former Yukos shareholders who obtained $50B+ arbitration awards against Russia; Russia moved to set aside those awards in Dutch courts; appeal pending.
- Petitioners sought discovery under 28 U.S.C. § 1782 from U.S. law firm White & Case and its chairman Hugh Verrier for documents and depositions relating to White & Case’s work for Yukos (1998–2004) and later work for Russia, including materials allegedly in a Russian "mother file."
- White & Case located limited responsive materials in the U.S., identified additional boxes/servers abroad, and asserted privilege/confidentiality concerns under U.S. and Russian law; it also says it screened personnel working on Russia matters.
- Petitioners sought historical (1998–2004) documents to rebut Russia’s "unclean hands"/bribery allegations involving the so‑called Tempo Agreements; Russia had raised related allegations during arbitration and Dutch proceedings years earlier.
- The magistrate judge found statutory prerequisites for § 1782 jurisdiction satisfied but distinguished two document categories: (Type 1) materials generated during White & Case’s Yukos representation and retained thereafter; (Type 2) materials in White & Case’s possession only because of its later representation of Russia.
- The court denied the § 1782 application in full, citing strong reasons against compelling production of Type 2 documents, delay and burden for Type 1 materials, uncertainty of Russian law on disclosure, and policy concerns about extraterritorial impacts on foreign clients and U.S. law firms.
Issues
| Issue | Petitioners' Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether § 1782 applies extraterritorially to compel production of documents located/controlled abroad | § 1782 incorporates the Federal Rules, which allow discovery of materials located abroad; control, not location, governs | Production would conflict with foreign law and presumption against extraterritoriality; most responsive docs are abroad | § 1782 can reach documents abroad if within respondent's control; court nonetheless denied relief on discretionary grounds |
| Whether White & Case is a participant in the Dutch proceeding (Intel factor 1) | White & Case is not a party to Dutch appeal and thus § 1782 aid is appropriate for nonparticipants | Many sought documents are effectively Russia’s (White & Case holds them only due to representing Russia), so foreign tribunal can obtain them | Distinction: Type 2 (documents obtained via representation of Russia) — factor disfavors § 1782; Type 1 (historical Yukos files) — factor favors § 1782 but not dispositive |
| Whether petitioners’ request circumvents foreign proof‑gathering or is untimely/dilatory (Intel factors 3 and delay) | No exhaustion required; Dutch courts admit § 1782 evidence; some alleged new evidence emerged in 2017 | Russia and Dutch proceedings long raised the bribery/unclean‑hands issues; petitioners delayed seeking § 1782 relief | Delay (petitioners knew allegations years earlier) and risk of circumventing foreign procedures weighed against granting discovery |
| Whether production would be unduly intrusive or violate foreign privilege/confidentiality (Intel factor 4) | Materials are historical and not privileged because Yukos no longer exists or privilege was waived when Russia obtained materials | Russian law, representative‑client protections, and contractual secrecy likely limit disclosure; production may breach foreign law and chill foreign clients of U.S. firms | Uncertainty and risk of violating Russian law, plus policy concerns, made production unduly intrusive; court exercised discretion to deny all requested discovery |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct.) (sets § 1782 standards and non‑exclusive discretionary factors)
- Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir.) (applying Intel factors; law‑firm‑representation considerations)
- Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194 (11th Cir.) (held FRCP permit extraterritorial document production; persuasive on § 1782 reach)
- Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir.) (requires authoritative proof that foreign tribunal would reject evidence obtained via § 1782 to deny relief on that basis)
- Mees v. Buiter, 793 F.3d 291 (2d Cir.) (§ 1782 exhaustion not required; apply Rule 26 standards for burden)
- Marc Rich & Co. v. United States, 707 F.2d 663 (2d Cir.) (control, not location, governs document production)
- RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (Sup. Ct.) (framework for presumption against extraterritoriality)