                      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 28 U.S.C. § 1782,

                   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 28 U.S.C.           §    1782 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         28   U.S.C.    §    1782   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, 746 F.Supp. 2d 27, 33 (D.D.C.

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

Futures Trading Comm'n,               439 F.3d 740,           750-51    (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, 238 F.R.D. 102, 104 (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." Id. (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." Id.                    (citing

United States v. Zolin, 491 U.S. 554, 567 (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, 754

F.2d 395, 399 (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, 491 U.S. at 572 (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.,             749 F.   Supp.   2d

141, 168      (S.D.N.Y. 2010) aff 'd sub nom. Lago Agrio Plaintiffs v.

Chevron Corp., 409 F. App'x 393                    (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, 2010 WL 3584520 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 28 U.S.C.             §   1782 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, 2010 WL 3584520 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." Id. at 9.

       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, 2010 WL 3418394, 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, 2010 WL 3418394, 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,

2015 WL 1499194,        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, 676 F.2d 793, 807-08 (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." Id. 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]." Id. 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." Id. 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."     Id.       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"), 18 U.S.C.           §   1030, and the Stored Communications Act, 18

U.S.C.    §   2701. 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, 676 F.2d at 812.

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

Sir Paul Judge,          [2014] EWHC 3556 (QB), 2014 WL 5483609 (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.,   2014 WL 5483609         ~


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,    491     U.S.     at   572

(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[.]" Id. 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., 2014 WL 1365424, 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., 2013 WL 2444047,

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., 296 F.R.D. 3, 7 (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, 610 F.3d 129, 141 (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., 250 F.R.D. 20, 24                        (D.D.C. 2008)           (citing

In re Sealed Case, 737 F.2d 94, 98-99 (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,]"          id.,    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 28 U.S.C.           §

1782 Application at 17 [Dkt. 1]). August 31, 2013 was three months

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

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




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