KUWAIT PORTS AUTHORITY, et al. v. CROWELL & MORING, LLP, et al.
Case No. 22-mc-64-RJL-MJS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 17, 2025
In this Section 1782 proceeding, Petitioners Kuwait Ports Authority (“KPA”) and the Public Institution for Social Security (“PIFSS”) (together, “Petitioners”) secured judicial approval to serve several subpoenas—one document subpoena and three deposition subpoenas (the “Subpoenas”)—on Crowell and Moring, LLP and two individual lawyers (together, “Crowell”). The Subpoenas relate to Crowell’s representation of a limited partnership in which Petitioners are two of the limited partners. Even though Crowell intervened in this case before the Court first authorized the Subpoenas, it did not substantively oppose the discovery at that time. Instead, after the Court evaluated and approved the Subpoenas, Crowell now moves to quash them in full under
The Court’s underlying opinions reasonably summarized the backdrop to this case. In re Kuwait Ports Auth., 2024 WL 4183210 (D.D.C. Aug. 6, 2024) (Meriweather, M.J.), report and recommendation adopted, 2025 WL 1529798 (D.D.C. May 29, 2025) (Leon, J.). So the Court focuses here on the facts and procedural history that bear on the instant motion.
I. Relevant Factual Overview2
The Port Fund, L.P. (the “Port Fund”) is a limited partnership organized under Cayman law. (ECF No. 1 (“App.”) ¶ 15.) It was formed as a private equity vehicle to invest in global infrastructure assets. (Id.) Petitioners KPA and PIFSS are two of eleven limited partners of the Port Fund. (Id. ¶ 16.) Between them, Petitioners collectively invested $125 million in the partnership and hold over 60% of Port Fund’s total investment. (Id.) Port Link GP is the general partner of the Port Fund (the “General Partner”). (Id. ¶ 17.) Throughout the relevant timeframe, the General Partner held all rights and property of the Port Fund in trust for the benefit of the Port Fund. (Id.) In May 2018, Port Link Holdings USA, Inc. acquired the General Partner. (Id. ¶ 21.) Mark Williams was the sole director and shareholder of Port Link Holdings, so he functionally controlled the Port Fund’s General Partner starting in May 2018. (Id. ¶ 22.) For a time, Williams also exercised significant control over the Port Fund’s investment manager, KGL Investment Cayman Ltd. (the “Investment Manager”). (Id. ¶¶ 23–24.) In 2018, Henry Ayliffe—a beneficial owner of Apache Asia Limited (“Apache”)—acquired indirect ownership of the Investment Manager. (Id. ¶ 25.) The Investment Manager was ultimately dissolved in 2020. (Id. ¶ 26.)
Meanwhile, in July 2018, the Port Fund’s Investment Manager purported to terminate its agreement with the Port Fund, and it filed claims against the Port Fund and the General Partner in a Dubai court. (App. ¶¶ 35–37.) Broadly speaking, the Investment Manager claimed breaches of the investment management agreement owing to an alleged failure to pay various fees, carry, and interest. (Id. ¶ 37.) The Port Fund and General Partner conceded jurisdiction and venue in the Dubai court, and then promptly filed a document that essentially admitted to liability on the claims in an amount exceeding $56 million USD. (Id. ¶¶ 38–39.) The Dubai court entered judgment against the Port Fund and the General Partner. (Id. ¶¶ 40–41.) Crowell advised the Port Fund and General Partner in connection with the Investment Manager’s claims in the Dubai court. (Id. ¶ 42.)
Once the Clark Asset funds were unfrozen by the Dubai authorities, the General Partner instructed the bank to initiate a payment in February 2019 that was ostensibly intended to satisfy the Dubai judgment—specifically, in the amount of nearly $60 million USD, made payable to Wellspring Capital Group, Inc. (“Wellspring”). (App. ¶¶ 43–44.) According to Petitioners, Williams is the CEO, CFO, President, Vice President, Treasurer, and Secretary of Wellspring. (Id. ¶ 46.) That same month, in February 2019, Apache invoiced the General Partner for $36.2 million
In January 2020, KPA and other limited partners initiated a “Section 22” proceeding in the Cayman Islands, which permits limited partners to demand and receive information regarding the business and financial affairs of an exempted limited partnership under Cayman law. (ECF No. 31 (“Mot.”) at 7.) Then, in October 2020, KPA and PIFSS initiated legal action against the General Partner (and other defendants) in the Cayman Islands, bringing both direct claims on their own behalf and derivative claims on behalf of the Port Fund itself. (App. ¶ 10.) In broad strokes, Petitioners allege in the Cayman litigation that the General Partner—in concert with Mr. Williams and others—committed various breaches of trust and violated duties to the Port Fund and its limited partners through the payments summarized above. (See ECF No. 1-1, App’x at 3–100.)3 As noted, Crowell acted as counsel to the Port Fund and the General Partner in connection with
II. Procedural History
Petitioners commenced this Section 1782 action in July 2022, seeking court approval to pursue discovery from Crowell for use in the Cayman action. (See generally App.) Specifically, Petitioners asked the Court to authorize the issuance of four subpoenas—one document subpoena and three deposition subpoenas—to Crowell seeking various categories of discovery.
As Petitioners describe the Subpoenas, they seek three overall buckets of information: (1) documents and communications related to the Investment Manager’s claims against the Port Fund and the General Partner in the Dubai court, including as related to the payments ostensibly made in satisfaction of the resulting judgment; (2) documents and communications related to the 2019 payments from the Port Fund to Apache, KGLI Kuwait, and Law Custodial; and (3) documents and communications related to approximately $7.3 million in total payments from the Port Fund to fourteen service providers identified in Petitioners’ Application (¶ 66). (See ECF No. 1-1 at 102–16 (the “Document Subpoena”).) Additionally, Petitioners were allowed to serve three deposition subpoenas, one directed to Crowell in a Rule 30(b)(6) capacity focused on essentially the same categories of information requested by the Document Subpoena, plus two directed to individual lawyers who were reportedly involved with the client relationship and the matters at issue. (See id. at 118–24, 126–28, 130–32 (the “Deposition Subpoenas”).)
District Judge Richard Leon referred the case to former Magistrate Judge Robin Meriweather for a report and recommendation (“R&R”). (See Min. Order, Aug. 30, 2022.) In
In August 2024, Judge Meriweather issued an R&R recommending that the Court grant Petitioners’ Section 1782 application and authorize the Subpoenas. See In re Kuwait Ports Auth., 2024 WL 4183210. Judge Meriweather found that Petitioners satisfied the three statutory criteria to pursue the discovery under Section 1782, and that the four discretionary Intel factors likewise supported Petitioners’ application. See id. at *4–8.5 Among other points, Judge Meriweather determined that the Subpoenas “seek information that is relevant and appropriately tailored to the claims at issue in the Cayman litigation.” Id. at *7; see also id. at *8 (reiterating that the Subpoenas “seek information that is highly relevant to the claims at issue in the Cayman litigation”). Judge Meriweather recognized that the Subpoenas “seek information that could potentially be protected by the attorney-client privilege” but declined to wade into those questions in the absence of “specific substantive arguments” from Crowell. See id. at *7 (“Crowell’s brief comments on this
Even though Crowell chose not to oppose Petitioners’ application before Judge Meriweather, it nevertheless filed substantive objections to the R&R after it issued. (ECF No. 24.) On review, Judge Leon rejected Crowell’s objections and adopted the R&R in full, issuing that order on May 29, 2025. See In re Kuwait Ports Auth., 2025 WL 1529798. As an initial point, he ruled that Crowell waived any objections by failing to press its arguments before Judge Meriweather. See id. at *2 (citing Klayman v. Jud. Watch, Inc., 6 F.4th 1301, 1312 (D.C. Cir. 2021) (“Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.”)). But Judge Leon rejected Crowell’s arguments on the merits, too. In pertinent part, he agreed that the requested documents “are relevant to petitioners’ direct and derivative claims in the Cayman action.” Id. at *3. And while he recognized that the Subpoenas “do seek information that could be protected by the attorney-client privilege,” Judge Leon agreed that it was “premature based on the record before the Court to make privilege determinations[.]” Id. at *4 (noting, among other things, Petitioners’ arguments that “the crime-fraud and fiduciary-beneficiary exceptions apply to the privileged information”).
On June 12, 2025, Crowell filed the current motion to quash. (ECF No. 31.) Judge Leon referred the matter to the undersigned. (Min. Order, June 17, 2025). On June 27, 2025—ten days after this case landed on the undersigned’s docket—Crowell filed a notice of interlocutory appeal to the D.C. Circuit to challenge the original Section 1782 order authorizing the Subpoenas. (ECF
LEGAL STANDARDS
“Section 1782 permits federal courts to provide evidence-gathering assistance for use in foreign tribunals.” In re Kuwait Ports Auth., 2024 WL 4183210, at *4 (citing Intel, 542 U.S. at 247–49). “Two layers of analysis govern applications under Section 1782: three statutory elements set forth in
If a court approves the requested discovery under Section 1782, the discovery target generally retains the ability to resist the discovery, including through appropriate objections or a motion to quash. In this way, “the standards for discovery set out in the Federal Rules of Civil Procedure also apply when discovery is sought under
In its motion to quash, Crowell mounts two overall arguments against the Subpoenas. First, Crowell argues that the Subpoenas impose an undue burden, on the theory that Petitioners can obtain the same discovery directly from other parties in the Cayman action. (Mot. at 12–13; ECF No. 37 (“Reply”) at 4–9.) And second, Crowell insists the Subpoenas are improper because they request “extensive” privileged materials and communications. (Mot. at 13–17; Reply at 9–12.) The Court takes each argument in turn, after first addressing Petitioners’ contention that Crowell somehow waived or forfeited these arguments by choosing not to oppose their initial Section 1782 application on the merits, despite intervening at that initial stage of the case.
I. Petitioners’ Waiver Theory
Petitioners posit that Crowell should be foreclosed from even raising its burden-related objections—including based on privilege—because Crowell made a strategic decision to forego any substantive arguments along these lines when the Court previously considered the issue of undue burden in authorizing the Subpoenas under Section 1782. (See ECF No. 42 (“Pet. Supp. Br.”) at 6–8.) The fourth Intel factor under the governing analysis, after all, requires a court to consider whether the discovery would be “unduly intrusive or burdensome[,]” Intel, 542 U.S. at 265—a standard that is essentially coextensive with the standards relevant to a motion to quash under Rule 45. In re Kuwait Ports Auth., 2024 WL 4183210, at *6 (collecting cases). And the same arguments that Crowell presses now were equally available to Crowell then. It follows, Petitioners argue, that “there is no point in litigating the same issue more than once.” (Pet. Supp. Br. at 8.) Although the Court shares Petitioners’ frustration with the inefficiencies and delays caused by Crowell’s wait-and-see approach to this proceeding, the Court is not prepared to conclude—at
Start with some background. Section 1782 applications are frequently decided on an ex parte basis, at least in the first instance. Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 55 F.4th 469, 474 (5th Cir. 2022) (“[I]t is not unusual for § 1782(a) applications to be made initially on an ex parte basis to the district courts[.]”); Pishevar, 2025 WL 885115, at *2 (observing that ex parte rulings on Section 1782 applications are “not uncommon in these sorts of proceedings”). This is so because the discovery target is generally not involved in the proceedings until after the discovery is authorized and served. In those scenarios—i.e., where the discovery is approved ex parte—courts allow the discovery target to reargue the Section 1782 factors after appearing in the case, and to simultaneously argue why the discovery should be quashed under Rule 45. See Pishevar, 2025 WL 885115, at *8 (explaining why this ex parte dynamic means “courts should allow recipients of discovery authorized under Section 1782 to challenge the initial order’s validity” and entertaining arguments under both Section 1782 and Rule 45) (cleaned up); see also In re App. of Bapa Holdings, Corp., 2025 WL 3268248, at *1 (D.D.C. Nov. 24, 2025) (similar). Indeed, the Fifth Circuit has ruled that it is reversible error for courts to preclude that sort of “adversarial testing” where the challenged discovery was approved ex parte in the first instance. Banca Pueyo, 55 F.4th at 474–76. But the same considerations do not map so neatly onto a situation where, as here, the discovery target joins the proceedings before a court decides the Section 1782 application, with a full opportunity to challenge the discovery at that early stage. Where a discovery target in that circumstance chooses not to substantively oppose the discovery—at least based on categorical arguments of undue burden and privilege—does the target still retain the ability to challenge the requested discovery after it is approved?
Crowell’s position, moreover, creates significant tension with
All that said, the Court recognizes that it is not writing on an entirely clean slate here. In the R&R authorizing the Subpoenas, Judge Meriweather addressed Crowell’s limited opposition to Petitioners’ application and indicated that “Crowell will have a full opportunity to object to the subpoenas under the Federal Rules of Civil Procedure.” In re Kuwait Ports Auth., 2024 WL 4183210, at *1 n.1.
II. Undue Burden
Turning to the merits of Crowell’s objections, it first argues that the Subpoenas should be quashed on the basis that they are unduly burdensome because the information Petitioners seek is “available through parties to the Cayman action[.]” (Mot. at 12.) The Federal Rules of Civil Procedure contemplate that courts can properly limit discovery when it “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”
For starters, the premise of Crowell’s argument—that the materials requested by the Subpoenas are equally obtainable in the foreign proceedings—is flawed. Crowell’s counsel acknowledged during a recent status conference that the “client file” it produced to the General Partner in connection with the Cayman proceedings does not encompass all the materials that would be responsive to the Subpoenas. So even if Petitioners were successful in obtaining the full “client file” through the Cayman discovery process, they still would not have the full set of materials requested by the Subpoenas. In short, as Crowell itself has conceded, the discovery at issue is not “equally available” through the foreign proceedings.
Moreover, Petitioners explain that they have tried to pursue much of the same discovery they seek here through the Cayman proceedings, but without much to show for it. (See ECF No. 32, (“Opp’n”) at 22; see also ECF No. 44, Nov. 18, 2025 Motions Hrg. Tr. (“Hrg. Tr.”) at 24:10–27:21 (Petitioners’ counsel describing their efforts)). The Court agrees with Petitioners that Section 1782 does not impose some sort of “exhaustion” requirement along these lines. See In re Kuwait Ports Auth., 2025 WL 1529798, at *3 (“Section 1782(a) does not, however, require petitioners to exhaust their discovery options with parties to the Cayman action before seeking discovery from Crowell.”) (citing In re Veiga, 746 F. Supp. 2d at 24 (“Section 1782(a) does not incorporate an exhaustion requirement, and an applicant is not required to first seek discovery from the foreign tribunal.”). But even still, Petitioners’ effort to pursue this discovery in the Cayman litigation further weakens Crowell’s position that the Court should quash the subpoenas on this basis. See, e.g., Darling v. Girard, 2015 WL 13898434, at *8 (D.D.C. July 20, 2015) (crediting a party’s
Otherwise, beyond its “equally available” objection, Crowell raised another burden-related argument during the motions hearing: that the scope and volume of the materials requested by the Subpoenas would impose too heavy a lift on Crowell in responding, whether measured in time, financial expense, or both. (See Hrg. Tr. at 6:24–7:11.) There are several problems with this newfound argument. For one thing, Crowell never pressed it in writing. Absent exceptional circumstances, “arguments raised for the first time at oral argument are forfeited[,]” U.S. ex rel. Davis v. Dist. of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015), and Crowell identifies no exceptional circumstances here. Indeed, Crowell would be particularly hard-pressed to do so considering that it has been aware of the Subpoenas for years now, with ample opportunity to prepare and articulate the basis for its objections in its long-promised motion to quash. Yet Crowell failed to mount any undue-burden argument along these lines in its written briefing. For another thing, even setting Crowell’s forfeiture problem to the side, Crowell fails to explain how or why the burden of responding to the Subpoenas would be undue, much less with any specificity. Among other shortcomings, Crowell fails to articulate the specific number of responsive documents implicated by the Subpoenas, the number of custodians whose records are believed to be implicated by the Subpoenas, how many hours Crowell anticipates it would need to expend to search for and collect documents in response to the Subpoenas, and so on. Crowell certainly does not engage with the Subpoenas on a request-by-request basis, arguing that a particular category of information requested by the Subpoenas is especially onerous or unnecessarily broad, for instance. As the party resisting the Subpoenas, the burden falls on Crowell to explain its undue-burden objections with specificity. See, e.g., Fairholme Funds, Inc. v. Fed. Hous. Fin. Agency, 2019 WL 5864595, at *2 (D.D.C. Nov.
III. Privilege Issues
Crowell mounts a more full-throated objection to the Subpoenas on the basis that they seek what Crowell characterizes as “extensive privileged materials and privileged communications,” i.e., those implicating an attorney-client privilege between Crowell and its clients, the Port Fund, and the General Partner. (Mot. at 13–16.) Petitioners insist otherwise. They begin by arguing that Crowell fails to adequately invoke the privilege, both because it failed to produce a privilege log and because Crowell essentially concedes that not every responsive document would be privileged. More broadly, Petitioners say that the fiduciary-beneficiary exception and crime-fraud exception circumvent any privilege claim on these facts. After careful consideration, the Court concludes, based on the specific circumstances presented here, that the fiduciary-beneficiary exception overcomes Crowell’s invocation of attorney-client privilege over the requested discovery (at least as narrowed by the Court toward the conclusion of this ruling).
“The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.” Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C. Cir. 1997) (citation omitted). “The privilege also protects communications from attorneys to their clients if the communications rest on confidential information obtained from the client.” Id. (citation and quotations omitted). As our Circuit has explained, “the proponent of a privilege bears the burden of demonstrating facts sufficient to establish the privilege’s applicability.” In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n, 439 F.3d 740, 750 (D.C. Cir. 2006). To meet that burden, the party invoking the privilege must demonstrate its applicability “by way of affidavits or other competent evidence,” Alexander v. FBI, 192 F.R.D. 42, 45 (D.D.C. 2000) (citation and quotation omitted), “beyond conclusory statements, generalized assertions, and unsworn averments of its counsel,” F.T.C. v. Boehringer Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 16 (D.D.C. 2016) (citation and quotations omitted).
Against these baseline principles, the Court recognizes that a meaningful swath of the information requested by the Subpoenas—i.e., documents concerning a law firm’s representation of its clients—will certainly implicate the attorney-client privilege. But the Court cannot say that is universally true. And Crowell does not say that either. As Petitioners point out, the most Crowell says along these lines is that the requested documents “consist overwhelmingly” of privileged materials. (Reply at 11.) In other words, Crowell acknowledges—implicitly, anyway—that at least some of the requested documents are not privileged. Crowell’s supporting affidavit filed in support of its motion to quash (ECF No. 31-2) does not help matters much. As to the scope of materials requested by the Subpoenas, the most Crowell articulates with any specificity is that “Crowell represented Port Link and Port Fund for many years across varied, lengthy and complicated
Crowell’s nonproduction of a privilege log further complicates the Court’s consideration. Ordinarily, a party withholding otherwise responsive documents based on the invocation of a privilege—including the attorney-client privilege—must provide a contemporaneous privilege log that describes the nature of the materials held with sufficient specificity, but “without revealing information itself privileged or protected,” to “enable other parties to assess the claim.”
But ultimately, the Court does not need to parse those consequences more fully because, for the reasons explained next, the Court agrees that the fiduciary-beneficiary exception overcomes Crowell’s privilege claims as to the discovery requested by Petitioners through the Subpoenas here, at least as narrowed by the Court in a few modest respects.
B. The Fiduciary-Beneficiary Exception
By many accounts, the fiduciary-beneficiary exception traces its roots to the Fifth Circuit’s decades-old decision in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). Garner held, in essence, that a corporation cannot invoke the attorney-client privilege against its own shareholders when the potentially privileged information relates to the subject of a later lawsuit by the shareholders against the corporation, at least where the shareholders establish good cause to obtain the information. See id. at 1103–04. The rationale behind this rule rested on a “particularized context”: “where the client asserting the privilege is an entity which in the performance of its functions acts wholly or partly in the interests of others, and those others, or some of them, seek access to the subject matter of the communications.” Id. at 1101 (emphasizing that “management does not manage for itself and that the beneficiaries of its actions are the stockholders”). Courts have since extended this holding into other contexts, recognizing that it encompasses other “fiduciary relationships such as between unions and
While it does not appear that the D.C. Circuit has squarely addressed the fiduciary exception, several courts within this District have done so. In Cobell v. Norton, for instance, Judge Lamberth applied the fiduciary exception in the context of a trustee-beneficiary relationship, explaining that it vitiates the attorney-client privilege as to “communications between a trustee and its attorneys concerning the administration of the trust,” at least when the communications are sought by the beneficiaries of the trust (rather than some outside party). 212 F.R.D. 24, 27 (D.D.C. 2002). The court summarized the rationale behind the exception as follows:
As a representative for the beneficiaries of the trust which he is administering, the trustee is not the real client in the sense that he is personally being served .... The very intention of the communication is to aid the beneficiaries. The trustee here cannot subordinate the fiduciary obligations owed to the beneficiaries to their own private interests under the guise of attorney-client privilege.
Id. (quoting Washington-Baltimore Newspaper Guild, Local 35 v. Washington Star Co., 543 F. Supp. 906, 909 (D.D.C. 1982) (citation omitted)). Cobell went on to apply the fiduciary exception to require a witness to testify about advice received from legal counsel regarding trust administration. See id. at 30–31; see also Cavanaugh v. Saul, 2007 WL 1601743, at *2–4 (D.D.C. June 4, 2007) (similar, applying exception to require ERISA plan fiduciaries to produce otherwise privileged documents to plan beneficiaries). Further, in Wessel v. City of Albuquerque, former Magistrate Judge Kay applied the exception in the union context, ruling that it overrode the attorney-client privilege as invoked by a union against its members to permit discovery into legal advice given to the union concerning the interests of its members. 2000 WL 1803818, at *4–7 (D.D.C. Nov. 30, 2000).
Importantly, Crowell does not contest the potential applicability of the fiduciary exception as a general matter. It does not argue, for instance, that the fiduciary exception can never extend to the relationship between a general partner and its limited partners. And neither does Crowell argue that no fiduciary relationship existed between its client(s), the Port Fund and the General Partner, and Petitioners as limited partners of The Port Fund. This is true despite Petitioners’ stated position that the general partner of an exempted limited partnership under Cayman law owes fiduciary duties to the limited partners. (Opp‘n at 26 (citing
1. The Fiduciary-Beneficiary Exception‘s Threshold Applicability
As noted, the Subpoenas seek discovery of three broad categories of materials: (1) documents and communications related to the Investment Manager‘s claims in the Dubai court and the ensuing proceedings and judgment; (2) documents and communications related to the 2019
Against that foundation, Crowell retains the burden to demonstrate that the fiduciary exception is inapplicable. Cobell, 212 F.R.D. at 27 (“[W]here the ‘fiduciary exception’ is at issue, the proponent of the privilege retains the burden to demonstrate the applicability of the privilege.“). As the Court discusses next, Crowell‘s various arguments come up short.9
2. Crowell‘s Counterarguments Fail To Foreclose The Exception
As previewed, Crowell mounts four relatively limited arguments against the applicability of the fiduciary-beneficiary exception on these facts. None prevails.
First, Crowell argues that even if the fiduciary exception can abrogate the attorney-client privilege in some instances, it can never trigger the production of materials covered by the work-product doctrine. (Reply at 17–19; Resp. Supp. Br. at 9.) The Court is unpersuaded. “The work-product doctrine shields materials ‘prepared in anticipation of litigation or for trial[.]‘” Judicial Watch, Inc. v. Dep‘t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting
Second, invoking Garner‘s “good cause” requirement, Crowell argues that Petitioners cannot establish the requisite “good cause” to pierce the attorney-client privilege in this case. (Reply at 17–19; Resp. Supp. Br. at 6–9.) The Court disagrees. The Garner court identified a non-exhaustive list of indicia that can show “good cause” to overcome the privilege in this context:
[T]he number of shareholders and the percentage of stock they represent; the bona fides of the shareholders; the nature of the shareholders’ claim and whether it is obviously colorable; the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication related to past or to prospective actions; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons.
Garner, 430 F.2d at 1104. Courts largely agree that the party seeking to pierce the privilege bears the burden of establishing “good cause.” See, e.g., Callas v. Callas, 2019 WL 449196, at *3 (D.N.J. Feb. 4, 2019); Chill v. Calamos Advisors, LLC, 2017 WL 1478123, at *3 (N.D. Ill. Apr. 25, 2017) (collecting cases). Ticking through the various indicia, Petitioners carry that burden here. They represent the interests of two of the eleven limited partners in the Port Fund, comprising approximately 60% of the overall investment stake, as well as the Port Fund itself (in a derivative capacity). Their claims in the Cayman action are certainly colorable, as reflected in no small part by the fact that they survived the functional equivalent of a motion to dismiss and a subsequent appeal. (See Opp‘n at 27 n.5.) The requested discovery is “highly relevant” and important to the Cayman litigation, see In re Kuwait Ports Auth., 2024 WL 4183210, at *8, and Petitioners have been unable to obtain it from other sources despite reasonable efforts. The Cayman litigation is
Against those points, Crowell presses a few arguments to the contrary. (See Resp. Supp. Br. at 6–9.) None scuttles Petitioners’ showing. One, Crowell says that Petitioners fail to establish that the information they seek cannot be obtained from other sources, including parties to the Cayman litigation. This argument fails for the same reasons that led the Court to reject Crowell‘s undue burden argument on the same basis. Two, Crowell minimizes Petitioners’ proportional stake in the Port Fund because they are only two of eleven limited partners. But as noted, these two partners are far from bit players; they comprise more than half of the underlying investment in the Port Fund. And more, Petitioners represent the Port Fund itself in a derivative capacity, so Crowell‘s focus on limited-partner nose-counting is slightly misplaced overall. Three, Crowell insists that Petitioners are engaged in a fishing expedition, but the Court disagrees for the reasons just stated. At most, Crowell focuses on Request No. 7 in the Document Subpoena, which implicates “all documents and communications relating to services performed by Crowell.” (Id. at 8.) The Court agrees that request is drafted more broadly than necessary, so it will narrow that request as explained more fully below. But beyond that, the Subpoenas are reasonably tailored. And four, Crowell argues that the Subpoenas “pose a substantial risk of disclosing confidential information in which [the] Port Fund and [the General Partner] have an independent interest.” (Id.) Even if true, the Court can assuage those concerns by requiring an appropriate protective order to
Third, Crowell argues that Petitioners cannot invoke the fiduciary exception against Crowell here because there was no fiduciary relationship between Petitioners and Crowell. (Resp. Supp. Br. at 3–5.) This misunderstands the relevant analysis. The privilege Crowell invokes to quash the Subpoenas is a privilege held by its clients, the Port Fund and the General Partner—a point that Crowell acknowledges. (See Mot. at 13 n.13.) And it is Crowell‘s clients’ privilege, not Crowell‘s privilege, that the fiduciary exception touches here.10 So it is beside the point whether Crowell had an independent fiduciary relationship with Petitioners or owed them any independent legal or ethical duties by virtue of its representation of the General Partner and the Port Fund. The fiduciary relationship between the General Partner and Petitioners is what matters. And Crowell does not dispute or even really touch on the existence of that fiduciary relationship.
Fourth, Crowell argues—for the first time in its supplemental brief—that Petitioners fail to demonstrate the “mutuality of interest” necessary to trigger the fiduciary-beneficiary exception here. Crowell rightly posits that the exception “is premised on a shared interest between a fiduciary and its beneficiaries in the retention and use of legal advice.” (Resp. Supp. Br. at 5.) But as the Court described already, Crowell fails to concretely explain how the discovery captured by the Subpoenas would sweep in privileged materials that did not mutually benefit the General Partner
Crowell says any mutuality here was destroyed “after Petitioners took a number of adverse actions against Port Fund and its personnel.” (Resp. Supp. Br. at 5.) Primarily, Crowell claims that “Kuwaiti authorities,” in late 2017, detained and later filed criminal charges against two of the General Partner‘s prior directors, and that the Kuwait Attorney General, in May 2018, asked Dubai to transfer some of the then-frozen Clark Asset proceeds directly to Petitioners. (Id. at 5–6.) In addition, Crowell says that in August 2019, “KPA issued a press release accusing Port Fund of crimes against Kuwait[.]” (Id. at 6.) In support, Crowell cites exclusively to a May 2020 declaration (ECF No. 31-1) submitted by one of the firm‘s partners in a different
Further, and to pull back for a moment, Crowell‘s arguments ignore an important dynamic about Petitioners’ stance in the Cayman proceedings. Not only do Petitioners represent themselves and their own interests, but they have been approved by the Cayman courts to represent the Port
Beyond those events, Crowell points to three other events as destroying mutuality: Petitioners filing a lawsuit against the General Partner in the Cayman Islands in January 2020; Petitioners filing another lawsuit against the General Partner in the Cayman Islands in October 2020; and Petitioners threatening to sue Crowell in 2021. (Resp. Supp. Br. at 6.) But as noted, Petitioners are limiting the scope of the Subpoenas to a timeframe ending in 2019, before all those events transpired. The Court follows Petitioners’ lead on that point and restricts the Subpoenas accordingly, which means the Court need only decide the mutuality question up to that juncture.
* * *
To sum up, the Court finds that the fiduciary-beneficiary exception abrogates any claim of attorney-client privilege that Crowell asserts over the discovery requested by the Subpoenas, at least as narrowed in a few modest respects below. The Court emphasizes, however, that this ruling does nothing to upset any potential privilege that may apply to the requested documents as to the outside world writ large. The Court‘s finding is limited to Crowell‘s production to Petitioners, as limited partners of the Port Fund, in these specific circumstances.11
Beyond Crowell‘s broader objections to the Subpoenas, it presses a handful of separate arguments as to the why the Court should quash the Deposition Subpoenas that it authorized under
To begin, Crowell resists the Deposition Subpoenas on the same overall grounds as to the Document Subpoena: Crowell argues that the Deposition Subpoenas would impose an undue burden and implicate “a range of privileged topics.” (Mot. at 17–19.) The Court rejects these arguments for the same reasons already explained. Beyond that, Crowell argues that Petitioners fail to show “good cause” to allow the depositions of legal counsel. (See id. at 18–23; Reply at 19–20.) It is true that courts are often reluctant to permit attorney depositions, but that reluctance is typically premised on the concern that the deposition will implicate the disclosure of privileged information. But here, the Court‘s determination on the fiduciary-beneficiary exception—at least as to the information encompassed by the Subpoenas—obviates any privilege-related concerns. And while Crowell otherwise argues that Petitioners must satisfy the Eighth Circuit‘s three-part test to depose opposing counsel, see Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986), the Court agrees with the decisions from this District recognizing that “[t]he Shelton test ... is limited to circumstances in which the proposed deponent is serving as the opposing party‘s trial or litigation counsel[.]” Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 379 (D.D.C. 2011).12 Crowell does not assert that it is serving as “trial or litigation” counsel for the General Partner (or the Port Fund) in the Cayman litigation, so Shelton is inapplicable here.
V. The Court Will Narrow The Subpoenas In Limited Part
Notwithstanding the broader holdings outlined above, the Court does believe it appropriate to narrow the Subpoenas in a few modest respects. The Court does so even though Crowell did not make any arguments against the Subpoenas on a request-by-request or category-by-category basis. All the same, the Court recognizes that it “properly considers relevance in evaluating a motion to quash a subpoena” under
First, as noted, the Court will narrow the applicable timeframe for all the Subpoenas to the period from Crowell‘s original retention through the end of 2019. Crowell need not produce materials or information outside that period, even if otherwise responsive to the Subpoenas.
Second, on the Document Subpoena, the Court will modify the text of Request No. 7 so that its scope is limited to information about the “Disputed Services” as defined by Petitioners:
7. All documents and communications relating to the Disputed Services [
services performed by Crowell, or third parties engaged by Crowell and/or acting at Crowell‘s instruction, and paid for by the Port Fund and/or the General Partner from the time it was engaged by the Port Fund to date], including without limitation ...
Third, turning to the 30(b)(6) Deposition Subpoena to Crowell, the Court imposes two similarly focused restrictions to narrow the identified topics of examination, so that they focus on the “Disputed Services” where applicable. To this end, the Court will strike Topic No. 7 altogether; as limited to the defined group of Disputed Services, Petitioners already enumerate the relevant service providers. Relatedly, the Court will modify Topic No. 8 to read as follows:
8. The nature of the Disputed Services [
services provided by each of the service providers identified in response to the foregoing matter], including the reasons for [of] the services, the beneficiaries of the services, and the manner in which the services benefitted the Port Fund.
Finally, as noted above, the Court will limit the permissible scope of the individual depositions (directed at David C. Hammond and Justin Kingsolver) to the categories of information requested by the Document Subpoena and the 30(b)(6) subpoena to Crowell.
CONCLUSION AND ORDER
For the reasons explained, the Court hereby DENIES Crowell‘s motion to quash in substantial part, except to modestly narrow the Subpoenas in the limited respects described. The Court will condition Crowell‘s compliance on the entry of an appropriate protective order to limit the permissible use of any discovery provided in response to the Subpoenas to the Cayman proceedings. Within fourteen (14) days, the parties shall file a proposed protective order along these lines. Within twenty-one (21) days, Crowell shall produce documents and information to
SO ORDERED.
Dated: December 17, 2025
MATTHEW J. SHARBAUGH
United States Magistrate Judge