United States v. COBURN, 2:19-cr-00120

Background

Defendants Gordon Coburn and Steven Schwartz are indicted under the FCPA for allegedly conspiring to pay a $2 million bribe to secure a permit for Cognizant’s KITS office facility in India; indictment alleges use of change orders to disguise bribery reimbursements to L&T.
On January 24, 2022 the Court granted in part Defendants’ motions to compel: ordered production of government–Cognizant communications relevant to the investigation and ordered Cognizant to produce certain documents (including draft press releases and PR communications).
Three motions for reconsideration followed: (1) Defendants sought reconsideration of denial of Request Nine (DBRs, drawing sets, specifications); (2) the Government sought correction of the ordered date range for production tied to alleged intrusion into the defense camp and requested in camera preclearance; (3) Cognizant sought reconsideration of the production of draft press releases and communications with PR firms on privilege/work-product grounds.
The Court found it had misstated the relevant intrusion date range (originally ordered Sept. 2016–Feb. 2019, but the alleged intrusion began July 2020) and adjusted production obligations accordingly.
Rulings: Court granted Defendants’ reconsideration in part (ordering production of three specified categories of DBRs: final pre-construction, interim, and final as-built); granted the Government’s motion in part (limited production obligation for Sept. 2016–Feb. 2019 to communications that reflect direction of Cognizant’s investigative efforts and required production of communications dated July 2020–present); denied Cognizant’s motion for reconsideration on privilege/work-product grounds for PR materials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether Request Nine (DBRs, drawing sets, specs) must be produced	Defs.: DBRs (pre-construction, interim, as-built) are critical to show change orders were legitimate and rebut bribery theory	Cog.: Request vague; violates Rule 17/Nixon; seeks unspecified drawings/specs	Court: Grant in part — order production of three specific DBR categories; deny vague broader materials
2) Proper date range for production re: alleged intrusion into defense camp	Gov.: Intrusion began July 2020; prior order’s Sept. 2016–Feb. 2019 range was mistaken; request production July 2020–present and in camera preclearance	Defs.: Want both ranges (Sept. 2016–Feb. 2019 and July 2020–present) because materials may be mutually relevant to outsourcing and intrusion	Court: Grant in part — require production of all Govt–Cognizant communications relevant to investigation from July 2020–present; correct earlier misstatement
3) Whether Govt. must produce communications from Sept. 2016–Feb. 2019 about outsourcing/investigation	Defs.: That earlier period may show investigative outsourcing and is relevant to Garrity/outsourcing claims	Gov.: No independent basis to order broad production for 2016–19; would undermine limits on Category A subpoenas	Court: Limited obligation — Gov. must review Sept. 2016–Feb. 2019 communications and produce any that reflect direction of Cognizant’s investigative efforts and certify completeness; no court in camera prebrowse required
4) Privilege/work-product protection for draft press releases and PR-firm communications	Cog.: PR firms were retained by counsel to assist in legal strategy and disclosure planning; communications privileged/work product	Defs.: Materials were created for public relations, not primarily for legal advice or litigation prep; privilege not applicable	Court: Deny Cognizant’s reconsideration — privilege/work-product not shown; production order stands; in camera review did not change result

Key Cases Cited

Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669 (3d Cir. 1999) (standards for reconsideration: intervening change, new evidence, or clear error/manifest injustice)
P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349 (D.N.J. 2001) (reconsideration proper only where court overlooked dispositive facts or controlling law)
NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513 (D.N.J. 1996) (reconsideration is extraordinary and granted sparingly)
North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194 (3d Cir. 1995) (reconsideration principles)
United States v. Nixon, 418 U.S. 683 (1974) (standards for subpoena of evidentiary materials)
Summerfield v. Equifax, 264 F.R.D. 133 (D.N.J. 2009) (interpretation of "overlooked" standard for reconsideration)