UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE:

APPLICATION OF INTERNATIONAL MINERAL RESOURCES B.V. FOR AN ORDER TO TAKE DISCOVERY PURSUANT TO

,

Applicant. Civil Action No. 14-mc-340(GK)

MEMORANDUM OPINION

Applicant International Mineral Resources B. V. ( "IMR" or

"Applicant") has asked this Court to compel Rinat Akhmetshin ("Mr.

Akhmetshin" or "Respondent") to produce certain documents and sit

for an additional day of deposition. In the alternative, IMR asks

the Court to review the requested documents in camera to determine

whether they should be disclosed. Mr. Akhmetshin and Intervenor

Eurochem Volga-Kaliy LLC ( "ECVK" or "Intervenor") oppose IMR' s

requests. Upon consideration of the Motion [Dkt. No. 27],

Oppositions [Dkt. Nos. 38, 39], Reply [Dkt. No. 43], and the entire

record herein, and for the reasons stated below, IMR's Motion shall

be granted in part and denied in part.

I . BACKGROUND

On April 3, 2014, IMR filed an Application for an Order to

Take Discovery Pursuant to 28 U.S. C. § 1 782 ("Application") [Dkt.

No. 1] authorizing it to depose and request documents from Rinat Akhmetshin, a resident of the District of Columbia. IMR intended

to use any evidence obtained from Mr. Akhmetshin in ongoing court

proceedings in the Netherlands (the "Dutch Action"). Id.

On June 27, 2014, IMR provided the Court with a Notice [Dkt.

No. 16] that it had prevailed in the Dutch Action before the

relevant court of first instance (or trial court) . IMR maintained,

however, that its Application was not moot because, among other

reasons, Dutch courts allow the introduction of new evidence on

appeal. Id.

On September 23, 2014, this Court issued a Memorandum Order

[Dkt. No. 17] denying IMR's Application without prejudice. The

Court concluded that the Application was premature because it was

not known whether either party would take advantage of the

opportunity to submit additional evidence on appeal in the Dutch

court system ("Dutch Appeal"). Id.

On October 30, 2014, IMR submitted its Motion to Renew its

Application for

Discovery [Dkt. No. 18], noting,

inter alia, that it hoped to use evidence discovered from Mr.

Akhmetshin in the Dutch Appeal.

On February 5, 2015, the Court granted IMR's· Renewed

Application for an Order under

Permitting

International Mineral Resources B.V. to Issue a Subpoena for the

Taking of a Deposition and the Production of Documents from Rinat

Akhmetshin [Dkt. No. 22].

- 2 - On April 7, 2015, at IMR's deposition of Mr. Akhmetshin,

following the advice of counsel, he de,clined to answer a number of

questions on grounds of privilege. Mr. Akhmetshin has also declined

to produce a number of requested documents (primarily on grounds

of privilege, although he also contends that some requested

documents are not relevant to this proceeding) .

On May 18, 2015, IMR filed its Motion to Compel Production of

Documents and Additional Day of Deposition.

On May 28, 2015, ECVK, a party to the Dutch Action and Dutch

Appeal, filed a Motion to Intervene [Dkt. No. 30] for the limited

purpose of responding to applicant IMR's pending Motion to Compel.

On June 10, 2015, the Parties indicated that IMR had consented to

ECVK's Motion to Intervene, and on June 12, 2015, the Court granted

the·Motion to Intervene [Dkt. No. 37].

On June 5, 2015, IMR submitted a Status Report stating that

its submission in the Dutch Appeal was due on June 23, 2015, 1 and

requesting a Status Conference.

On June 11, 2015, the Court held a Status Conference.

On June 18, 2015, Respondent and Intervenor filed their

Oppositions to Applicants's Motion to Compel, and on June 25, 2015,

Applicant filed its Reply.

1 The briefing schedule proposed by the Parties set the due date for Applicant's Reply on June 25, 2015. However, none of the Parties has indicated whether anything has been decided in the Dutch Appeal or that this Motion has become moot. - 3 - II. ANALYSIS

IMR seeks an order compelling Mr. Akhmetshin to produce 261

documents that he has withheld on grounds of privilege and

relevance and to sit for an additional day of deposition.in order

to respond to questions he refused to answer in his initial

deposition on April 7, 2015. Mr. Akhmetshin relies on the non-

testifying expert witness privilege codified at Fed. R. Civ. P.

26 (b) (4) (D), attorney-client privileg,e, and the scope of IMR' s

initial Application [Dkt. No. 1] to shield all but two of the 263

requested documents listed on his privilege log. 2 See Revised

Privilege Log, Applicant's Ex. A [Dkt. No. 27-2].

Intervenor ECVK also opposes IMR's Motion to Compel. It notes,

however, that "34 [of the 261 documents] are not subject to any

privileges that belong to [it]" and thus "defers to Mr. Akhmetshin

about whether to produce those documents [.]" Intervenor's Opp' n

at 2.

A. Non-testifying Expert Witness Privilege

Federal Rule of Civil Procedure 26 (b) (4) (D) applies to an

"expert who has been retained or specially employed by another

party in anticipation of litigation or to prepare for trial and

who is not expected to be called as a witness at trial" ("non-

testifying experts"). Fed. R. Civ. P. 26 (b) (4) (D) "Experts in

2 Mr. Akhmetshin has produced Revised Privilege Log entries 226 and 227, having determined that they were not privileged. - 4 - this category are treated very differently from those who are

expected to be called at trial." Charles Alan Wright & Arthur R.

Miller, § 2032 Expert Witnesses-Discovery as to Specially-Retained

Experts Who Will Not Be Called, 8A Fed. Prac. & Proc. Civ. § 2032

(3d ed.). The Rule provides that:

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by [a non-testifying expert] . [A] party may do so only: (i) as provided in Rule 35(b) 3 ; or (ii) on showing exceptional circumstances under which it is impracticable for -the party to obtain facts or opinions on the same subject by other means.

Fed. R. Civ. P. 26 (b) (4) (D).

In order to preclude an otherwise valid discovery request,

"the proponent must establish the claimed privilege with

'reasonable certainty:"' In re Veiga,

(D.D.C.

2010) (quoting In re Subpoena Duces Tecum Issued to Commodity

Futures Trading Comm'n,

(D.C. Cir. 2006).

Respondent contends that he has established with reasonable

certainty that he is a non-testifying expert covered by Rule

26 (b) (4) (D), and therefore, that the documents and testimony

Applicant seeks are privileged.

IMR does not rely on either of the exceptions contained in

Rule 26 (b) (4) (D) physical or mental examinations and

3 Rule 35 deals with physical and mental examinations where a party's "mental or physical condition . is in controversy [,]" Fed. R. Civ. P. 35(a) (1), and therefore, is not relevant. - 5 - "exceptional circumstances" to contest Mr. Akhmetshin's

assertion of privilege. Instead, IMR contends that

Mr. Akhmetshin' s privilege log lacks the detail necessary to

demonstrate that any of the documents he has withheld· actually

relate to his work as a non-testifying expert witness. See Revised

Privilege Log, Applicant's Ex. A.

Upon the record before it, the Court has little trouble

concluding that Mr. Akhmetshin served· as a non-testifying expert

for ECVK in connection with the Dutch Action. See e.g., Deel. of

Patrick Salisbury at ~~ 48-68 [Dkt. No. 39-4]. The Court need not

conclude whether Mr. Akhmetshin has put forth sufficient grounds

to withhold each and every document under Rule 26 (b) (4) (D) because,

as explained below, the crime-fraud exception to the non-

testifying expert privilege necessitates in camera review of all

documents withheld under Rule 26(b) (4) (D).

B. Crime-Fraud Exception

IMR contends that even if some of Mr. Akhmetshin's documents

would ordinarily be protected by Rule 26(b) (4) (D), the crime-fraud

exception to assertions of privilege requires disclosure in this

case.

In order to overcome an otherwise valid privilege with the

crime-fraud exception, the party seeking discovery must put forth

"more than mere allegations of wrongdoing." Tri-State

Hospital Supply Corp. v. United States,

(D.D.C.

- 6 - 2006). "To drive the privilege away, there must be something to

give col [or] . to the charge; there must be prima facie evidence

that it has some foundation in fact."

(internal quotation marks

and citations omitted) . "This burden does not have to be

established entirely with independent evidence-the documents

themselves are commonly the best evidence available."

(citing

United States v. Zolin,

(1989)).

A party "satisfies its burden of proof if it offers evidence

that if believed by the trier of fact would establish the elements

of an ongoing or imminent crime or fraud." In re Sealed Case,

(D.C. Cir. 1985).

The standard for allowing in camera review is less demanding:

"Before engaging in in camera review to determine the applicability

of the crim~-fraud exception, the judge should require a showing

of a factual basis adequate to support a good faith belief by a

reasonable person that in camera review of the materials may reveal

evidence to establish the claim that the crime-fraud exception

applies." Zolin,

(internal citations and quotation

marks omitted) .

1. Applicability of Crime-Fraud Exception

As a threshold' matter, Respondent contends that the crime-

fraud exception simply does not apply to the non-testifying expert

witness privilege. He contends that "[n]o court has ever held, as

IMR asks this Court to do, that the crime-fraud exception

- 7 - invalidates Rule 26(b) (4) (D) immunity." Resp't's Opp'n at 8-9.

Respondent is simply incorrect.

Two cases that grew out of a dispute involving a $27.4 billion

damages award entered against Chevron by an Ecuadorian court both

note the existence of a crime-fraud exception to the non-testifying

expert witness privilege. In re Chevron Corp.,

(S.D.N.Y. 2010) aff 'd sub nom. Lago Agrio Plaintiffs v.

Chevron Corp.,

(2d Cir. 2010) ("The crime-fraud

exception may vitiate any otherwise applicable protection, as at

least one other court has held in another Section 1782 proceeding

brought by Chevron to obtain discovery from an expert."); Chevron

v. E-Tech Int'l,

at *6 (S.D. Cal. Sept. 10, 2010)

("[T]he Court is persuaded by the reasons explained by Magistrate

Judge Mccurine as well as other U.S. courts who have addressed the

issue, that the crime-fraud exception applies.").

These cases are among "the many percolating in the

federal courts arising from efforts by Chevron Corporation

and two of its attorneys . . to obtain discovery in the United

States pursuant to

in aid of defending themselves

against civil litigation and/or criminal prosecution in

Ecuador." Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App' x

393, · 394 (2d Cir. 2010). In both matters, Chevron Corporation

sought the documents of the Ecuadorian Plaintiffs' U.S.

consultants because Chevron had come to believe that an Ecuadorian

- 8 - neutral expert witness's report -- which established the massive

damages award had been "copied wholesale from" the U.S.

consultants. Chevron v. E-Tech,

at *l (S.D. Cal.

Sept. 10, 2010). The U.S. District Court for the Southern District

of California held that the "crime-fraud exception [to the claimed

privileges] applie [d]" because "[t] here [wa] s ample evidence in

the reGord that the Ecuadorian Plaintiffs secretly provided

information to Mr .. Cabrera, who was supposedly a neutral court-

appointed expert, and colluded with Mr. Cabrera to make it look

like the opinions were his own."

.

In reply, Mr. Akhmetshin relies on yet another case arising

from the Ecuadorian Chevron matter for the proposition that "only

'exceptional circumstances' could justify piercing the consulting

expert privilege here." Resp't's Opp'n at 9 (citing Chevron Corp.

v. Camp,

, at *6 (W.D.N.C. Aug. 30, 2010)). However,

that case held only that the non-testifying expert privilege had

been waived and says nothing about whether the crime-fraud

exception would apply. Camp,

, at *6.

More recently, the U.S. District Court for the Southern

District of New York has ordered discovery of certain "media

strategy [documents]" and "the conclusions reached by retained

consultants and experts [,]" finding that they were "within the

crime-fraud exception and should be disclosed[.]" U.S. v. Ceglia,

, at *7-*8 (S.D.N.Y. Mar. 30 2015). Indeed, as

- 9 - •.

Applicant points out, failure to apply the crime-fraud exception

to non-testifying expert witnesses would be inconsistent with the

rationale behind the crime-fraud exception itself, which is that

a privilege must yield when it is used for corrupt purposes. See

In re Sealed Case,

(D.C. Cir. 1982) (documents

that are otherwise privileged will lose that status where "the

privileged relation from which they derive was entered into or

used for corrupt purposes").

Thus, the Court concludes that the non-testifying expert

witness privilege contained in Fed. R. Civ. P. 26(b) (4) (D), like

the attorney-client and work-product privileges, must give way to

the crime-fraud exception.

2. Alleged Misconduct

IMR claims that its "investigators uncovered evidence that

Mr. Akhmetshin, on behalf of ECVK, its parent company EuroChem,

and/or those companies' New York law firm Salisbury & Ryan, hacked

into the computer systems of IMR and its officers and associates,

stole confidential, personal and otherwise sensitive information,

and then disseminated that information in an unlawful attempt to

gain an unfair advantage in the Dutch Action." Applicant's Mot.

at 4. IMR relies on a number of sources to support its allegations.

IMR has put forth evidence "that Mr. Akhmetshin was hired by

Salisbury & Ryan LLP on behalf of ECVK to hack into IMR's computer

systems, steal IMR's confidential information, and disseminate it

- 10 - to third parties." Applicant's Reply at 6. To substanti'ate this

allegation, IMR points primarily to the sworn declaration of Akis

Phanartzis who works for a private investigation firm that IMR

hired to follow Mr. Akhmetshin and eavesdrop on his conversations.

See Deel. of Akis .Phanartzis at ~~ 1-12 [Dkt. No. 1-6]. Mr.

Phanartzis claims to have overheard Mr. Akhametshin in a London

coffee shop state that "he [had] organized the hacking of IMR's

computer systems" on behalf of ECVK."

at ~~ 10, 14. 4 Among other

things, "Mr. Akhmetshin [noted] that he was hired because there

were certain things that the law firm [Salisbury & Ryan] could not

do . " Id . at ~ 2 1.

In order to further substantiate its hacking allegationsi IMR

points to a thumb drive containing confidential information

belonging to IMR, which it believes Mr. Akhmetshin accessed. IMR

claims to have received the thumb drive, which contains a large

number of the company's sensitive documents, from an anonymous

source. Applicant's Ex. E, Deel. of Raphael Rahav at ~ 7-8 [Dkt.

4 The Declaration is not entirely clear as to whether Mr. Phanartzis had personal knowledge of all the facts contained therein, stating only that he is "familiar with the facts set forth in this Declaration, either from personal knowledge or on the basis of documents that have been provided to [him]."

at ~ 3 (emphasis added). However, the Declaration recounts the coffee shop incident in the first person, demonstrating that Mr. Phanartzis was present for the recounted conversation: "I took a table close to where Mr. Akhmetshin was sitting. I was sitting at a table approximately one meter from him, with the goal of hearing any conversation that might take place."

at ~ 11. - 11 - No. 27-6]; Applicant's Ex. F, Deel. of Tadeusz Jarmolkiewicz at ~

12-13 [Dkt. No. 27-7]; Applicant's Ex. L, Deel. of Melanie Maugeri

at ~ 7-9 [Dkt. 27-13]. According to the Declaration of Melanie

Maugeri, a digital forensic examiner retained by IMR, certain files

on the thumb drive were last accessed by a user called "RA," whom

IMR takes to be Rinat Akhmetshin. Ex. L, Deel. of Melanie Maugeri

at ~~ 7-8. Other files, according to Ms. Maugeri's Declaration,

were last accessed by a user called "Scott Horton."

Mr.

Akhmetshin has admitted to discussing his work for Salisbury &

Ryan with a man by that name. Revised Privilege Log entries 247,

249, 251-53; Applicant's Ex. H, Tr. at 164-79 [Dkt. No. 27-9].

IMR contends that Mr. Akhmetshin's alleged hacking

constituted a crime under the Computer Fraud and Abuse Act

("CFAA"),

, and the Stored Communications Act,

. However, Applicant also contends that, in addition

to showing evidence of a crime or fraud, it may also meet its

burden with evidence of some "other type of misconduct

fundamentally inconsistent with the basic premises of the

adversary system." In re Sealed Case,

.

Mr. Akhmetshin vigorously contests the truth of IMR's

allegations. He states plainly, "It is not possible that I was

overheard saying that I was turning over documents that I had

- 12 - hacked from an IMR or ENRC 5 computer, because I have never done

so, nor do I have the skills to do so." Akhmetshin Delc. at ~ 14

[Dkt. No. 10-1].

Moreover, he contends that the "nature of the conversation"

in the London coffee shop ~should trigger skepticism" because it

"had all the earmarks of a contrivance intended to induce a

boasting statement of capabilities of Mr. Akhmetshin." Resp' t' s

Opp'n at 10. He alleges that "the entrapped conversation

methodology [is] an established [tactic]" used by IMR's preeminent

shareholders, three Russian business magnates known as "the

Troika."

at 10-11 (citing Eurasian Natural Resources Corp. v.

Sir Paul Judge, [2014] EWHC 3556 (QB),

(Oct. 31,

2014) (Mrs. Justice Swift)) .6 The context of this apparent

entrapment, he argues, should cast doubt on the veracity of

Mr. Phanartzis's allegations.

Mr. Akhmetshin also objects to IMR's contentions related to

the thumb drive received from an anonymous source. He states that

materials leaked by officers or directors of ENRC, a company

related to IMR, were already circulating freely on the "London

Information Bazaar," a name the Parties use to describe the

5 ENRC is related to IMR through ownership. The shareholders who ultimately own IMR were the former owners of ENRC. Ex Parte Application at 7 n.3 [Dkt. No. 1]. 6 Available at http://www.bailii.org/ew/cases/EWHC/QB/2014/3

556.html (last visited July 14, 2015). - 13 - informal market for sensitive financial, political, and other

information that exists in London. Respondent's Opp'n at 12 (citing

Eurasian Natural Resources Corporation, Ltd.,

~

13) .

Finally, citing Fed. R. Evid. 901, Respondent notes that the

thumb drive would not be admissible as evidence at trial for lack

of a chain of custody.

While Mr. Akhmetshin's concerns are not frivolous, they are

not enough to preclude further review of the documents. IMR must

only set forth a "showing of a factual basis adequate to support

a good faith belief by a reasonable person that in camera review

of the materials may reveal evidence to establish the claim that

the crime-fraud exception applies." Zolin,

(internal citations and quotation marks omitted). It has done so.

The Court concludes that it is impossible to discern from

Mr. Akhmetshin's rather opaque Revised Privilege Log, which

documents may have a nexus to the alleged misconduct. See Privilege

Log [Dkt. No. 27-4]. Accordingly, in order to determine which, if

any, of the documents withheld under the non-testifying expert

privilege are sufficiently linked to the alleged misdeeds to pierce

the asserted privilege, the Court shall review, in camera, all of

the documents for which Mr. Akhmetshin has asserted non-testifying

expert privilege.

- 14 - 3. ECVK's Responsibility

ECVK claims that the crime-fraud exception cannot pierce the

non-testifying expert privilege asserted here because IMR has put

forward no evidence that ECVK itself engaged in any misconduct.

ECVK claims that its counsel, Salisbury & Ryan, did not "direct

anyone to obtain information from IMR or any of its affiliates in

any improper manner." Intervenor's Opp' n at 22. It notes that

"Salisbury & Ryan's engagement letter with Mr. Akhmetshin

specifically required that he comply with all applicable laws in

the conduct of his research[.]"

Finally, ECVK points out that

it had no direct interaction with Mr. Akhmetshin. Rather, its

counsel made the decision to hire him and supervised his work.

However, Mr. Akhmetshin's engagement letter clearly states

that he was hired to work on ECVK's behalf. Akhmetshin Deel., Ex.

A at 1 [Dkt. No. 10-1] ("Salisbury & Ryan LLP, as attorney agent

[sic] for its client [i.e., ECVK] and not in its individual

capacity ., has engaged you to provide the services described

below"). Moreover, Mr. Akhmetshin states in his Opposition that he

was "tolling [for information] on [ECVK's] behalf." Resp't's Opp'n

at 6.

Intervenor relies on In re Sealed Case, 107 F.3d at 50, for

the proposition that IMR must show "that ECVK itself had

unlawful intent[.]" Intervenor's Opp'n at 21. However, as

discussed above, IMR has put forth evidence that Mr. Akhmetshin

- 15 - engaged in conduct that could trigger discovery under the crime-

fraud exception within the scope of his duties as ECVK's expert.

See Applicant's Ex. D at ~ 14 [Dkt. No. 27-5] ("Mr. Akhmetshin

stated that he organized the hacking of IMR' s computer systems

specifically on behalf of [ECVK]" (emphasis added)) . In camera

review will allow the Court to determine whether Mr. Akhmetshin

"was on a frolic of his own, against the advice of . counsel,"

In re Sealed Case, 107 F.3d at 50, or whether his actions are

properly attributable to ECVK.

C. Strategic Connnunications

IMR contends that a large number of documents on

Mr. Akhmetshin's privilege log may not be properly withheld under

the non-testifying expert privilege because they relate to a public

relations campaign orchestrated by Mr. Akhmetshin rather than his

expert consulting services.

Respondent and ECVK contend that Mr. Akhmetshin did not engage

in any strategic communications on ECVK's behalf. Rather, they say

that Mr. Akhmetshin submitted only a proposal to lead a public

relations campaign tha.t ECVK swiftly rejected.

Mr. Akhmetshin and ECVK do not argue that strategic

communications or public relations work performed by

Mr. Akhmetshin would be privileged. Instead, they simply contend

that Mr. Akhmetshin' s numerous communications with journalists

- 16 - involved research and investigation in his capacity as a non-

testifying expert.

Accordingly, whether the documents sought concern strategic

communications and whether Mr. Akhmetshin performed such work at

all are factual questions that the Court will be able to answer as

part of its in camera review.

D. Communications with Third Parties

IMR next contends that Mr. Akhmetshin must produce any

documents he shared with third parties because third-party

disclosure constitutes a waiver of any otherwise applicable claim

of privilege. The Parties cite conflicting authority as to whether

the non-testifying expert privilege is subject to waiver at all.

Compare White v. Electrolux N. Am., Inc.,

, at *2

(N.D. Ill. Apr. 7, 2014) (explaining that "the concept of waiver

is applicable to Rule 26 (b) (4) (D)" because Rule 26 (b) (4) (D) "is

simply an application·of the work product rule") with Precision of

New Hampton, Inc. v. Tri Component Prods. Corp.,

,

at *5-6 (N.D. Iowa June 5, 2013) (after surveying cases, finding

that it "appears dubious that the waiver doctrine applies to" the

non-testifying expert privilege) . Another District Judge in this

Circuit has "[found] that while it is unclear whether Rule

26(b) (4) (D) is even subject to waiver, the general trend in other

districts has been to find that it is not." Eidos Display, LLC v.

Chunghwa Picture Tubes, Ltd.,

(D.D.C. 2013).

- 17 - However, the Court need not decide whether the Rule

26(b) (4) (D) privilege is subject to waiver because, as noted above,

the limited detail in Mr. Akhmetshin's Revised Privilege Log makes

it difficult to determine whether particular communications were,

in fact, made in furtherance of his non-testifying-expert role.

Before it can reach the issue of waiver, the Court must first

determine whether the communications at issue would have been

otherwise privileged.

Moreover, our Court of Appeals has stated that whether a

privilege subject to waiver has been waived depends upon whether

the proponent "had a reasonable basis for believing that the

recipient would keep the disclosed material confidential." United

States v. Deloitte LLP,

(D.C. Cir. 2010). Thus,

even if the Court ultimately determines that the non-testifying

expert privilege is subject to waiver, it will have to consider

this additional factual question via in camera review.

E. Lieberman Documents, Attorney-Client Privilege

Respondent contends that a separate category of documents

sought by IMR, which do not directly conc'ern ECVK, are protected

by attorney-client privilege because ·they are communications

between Mr. Akhmetshin and his own personal lawyer~ Edward

Lieberman. 7

7 These documents are listed in the Revised Privilege Log as numbers 207, 217-222, 224-225, 228-229, 231-232. - 18 - IMR contends that these communications are not privileged

because Mr. Akhmetshin testified at his deposition "that Mr.

Lieberman did not work on the ECVK project and that Mr. Akhmetshin

never sought Mr. Lieberman' s legal advice concerning the ECVK

project, IMR, Shaft Sinkers, or ENRC." ~pplicant's Mot. at 27

(citing Applicant's Ex. H at 113-14 [Dkt. No. 27-9]). After the

deposition, Mr. Akhmetshin amended two of his answers about Mr.

Lieberman's provision of legal advice from "no" to "yes,"

indicating that Mr. Lieberman did, in fact, provide legal advice.

Ltr. Form J. Kauke to U.S. Legal Support, Applicant's Ex. Y [Dkt.

No. 27-26].

"The attorney-client privilege applies where (1) the holder

of the privilege is or sought to be a client; (2) the person to

whom the communication was made is a member of the bar of a court

or his subordinate and in connection with this communication is

acting as a lawyer; (3) the communication relates to a fact of

which the attorney was informed by his client without the presence

of strangers for the purpose of securing primarily either an

opinion on law, legal services, or assistance in some legal

proceeding and not for the purpose of committing a crime or tort;

and ( 4) the privilege has been claimed ·and not waived by the

client." Elkins v. D.C.,

(D.D.C. 2008) (citing

In re Sealed Case,

(D.C. Cir. 1984)).

- 19 - Only prong (3) is at issue. Whether the communications between

Mr. Lieberman and Mr. Akhmetshin were made "for the purpose of

securing primarily [legal advice,]"

is not entirely clear

from the record. Accordingly, the communications with Mr.

Lieberman must be included in Mr. Akhmetshin's submission for in

camera review.

F. Post-August· 31, 2013 Documents

Respondent claims that Applicant is not entitled to any

documents post-dating August 31, 2013 for two reasons. First,

Respondent notes that reference to any post-August 31 documents

was omitted in IMR's meet and confer statement. Thus, under LCvR

7(m), Applicant's Motion to Compel discovery should be denied with

respect to these documents.

Second, Respondent contends that post-August 31, 2013

documents are outside the scope of IMR's Application. Intervenor

notes that IMR asked this Court for an order to permit discovery

of "a discrete universe of documents and testimony related to Mr.

Akhmentshin's own unlawful efforts on behalf of EuroChem and/or

ECVK." Intervernor's Opp'n at 16 n.8 (citing IMR's

Application at 17 [Dkt. 1]). August 31, 2013 was three months

after the end of ECVK's retention of Mr. Akhmetshin.

Accordingly, documents post-dating August 31, 2013 could not have

any relation to "Mr. Akhmetshin' s efforts on behalf of

EuroChem" -- unlawfull or otherwise.

- 20 - Therefore, Applicant's Motion to Compel with respect to

documents created on or after August 31, 2013 shall be denied.

G. Additional Day of Deposition

IMR contends that because Mr. Akhmetshin made overbroad

assertions of privilege at his first deposition, he should be

re~uired to sit for an additional day of de~osition. The Court

agrees.

Mr. Akhmetshin, upon the advice of. counsel, declined to answer

questions about the general subject matter of communications, the

persons present for those communications,' and even the number of

individuals present for those communications. The Court's in

camera review may reveal additional overbroad assertions of

privilege.

Accordingly, the Parties shall work collaboratively to

schedule an appropriate time for the deposition, and Mr. Akhmetshin

shall appropriately answer relevant questions regarding non-

pri vileged informatioh.

IV. CONCLUSION

For the foregoing reasons, IMR's Motion to Compel Production

of Documents and Additional Day of Deposition [Dkt. No. 27] shall

be granted in part and denied in part, and Mr. Akhmetshin shall

submit for in camera review all documents listed on his Revised

- 21 - Privilege Log except documents post-dating August 31, 2013 or

documents that have already been produced to opposing counsel.

July 28, 2015 67~.~ GladysKes~ / United States District Judge

Copies to: attorneys on record via ECF

• i

- 22 -