60 F. Supp. 3d 419
S.D.N.Y.2014Background
- Okean B.V. and Logistic Solution International Limited seek discovery from Chadbourne & Parke under §1782 for a Dutch dispute involving Wadan Yards and related transactions prior to Wad an Yards Group's bankruptcy.
- Chadbourne is not a party to the Dutch litigation but has represented multiple related entities (including Okean, Blakur, Poizanter, Fradomna, Olympus) in connection with the underlying matters.
- The subpoenas sought broad production of documents from Chadbourne dating from 2008/2009 onward, including files involving seven Chadbourne clients and various transactions and bankruptcy proceedings.
- A sample of over 600 documents, translated from Russian/Ukrainian, was produced for review on an attorneys’-eyes-only basis after the court’s earlier order.
- Waivers of privilege were later obtained from Okean and Blakur for privilege with respect to certain foreign-law confidentiality, but other Chadbourne clients had not waived, leaving a large set of potentially responsive but privileged materials.
- The court conducted multiple conferences and ordered Chadbourne to create a privilege log, and later engaged in in camera review of documents to assess privilege, burden, and probative value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fourth Intel factor bars production as unduly intrusive or burdensome | Okean: documents are probative and discovery should proceed despite burden. | Chadbourne: production would be unduly burdensome and intrusive, especially given privilege and foreign-law constraints. | Unduly burdensome; denial of application |
| Whether Russian/Ukrainian confidentiality laws prohibit disclosure | Okean argues crime-fraud or public-policy basis to override foreign law; seeks production. | Chadbourne: foreign confidentiality laws prohibit disclosure; U.S. discovery should not override them. | Foreign-law protections apply and prohibit production |
| Whether the crime-fraud exception applies to defeat privilege | Okean contends documents show a fraudulent conveyance; crime-fraud exception should apply. | Chadbourne: no analogous U.S.-style crime-fraud exception governs foreign-law privileges here; no proven fraud within evidentiary threshold. | No U.S.-style crime-fraud exception; privilege remains |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (four-factor test for §1782 discretion)
- In re Microsoft Corp., 428 F. Supp. 2d 188 (S.D.N.Y. 2006) (§1782 discretion; privilege and burden considerations)
- Marubeni Am. Corp. v. LBA Y.K., 335 Fed. Appx. 95 (2d Cir. 2009) (discretionary standards under §1782)
- In re Grand Jury Subpoena Dated September 15, 1983, 731 F.2d 1032 (2d Cir. 1984) (crime-fraud considerations in privilege analysis)
- In re John Doe, Inc., 13 F.3d 633 (2d Cir. 1994) (probative basis for crime-fraud nexus; burden on showing)
- United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997) (crime-fraud exception limitations; must show probable cause)
- Amusement Indus., Inc. v. Midland Ave. Assocs., LLC, 820 F. Supp. 2d 510 (S.D.N.Y. 2011) (badges of fraud and inference in fraudulent conveyance)