1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE APPLICATION FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING HULLEY ENTERPRISES LTD., YUKOS UNIVERSAL LTD., AND VETERAN PETROLEUM LTD., Petitioners,

v. BAKER BOTTS LLP, et al ., Respondents. Misc. Case No. 17-1466 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER The petitioners, Hulley Enterp rises Ltd., Yukos Universal Ltd., and Veteran Petroleum Ltd., seek reconsideration of the denial of their application, pursuant to 28 U.S.C. § 1782, to compel discovery from the law firm of Baker Botts LLP and a fir m partner (together, “respondents”), regarding, inter alia , all communications among atto rneys within the respondent firm about and with its long-stan ding client of over ten years, Rosneft, the world’s largest publicly traded oil company, as we ll as Rosneft’s subsidiaries, Rosneft’s officers, and respondents’ co-counsel in repre senting Rosneft, pertaining to certain proceedings in Armenian and Dutch courts involving either R osneft or the Russian Federa tion. See Pet’rs’ Mot. Reconsideration, ECF No. 15; In re Application for an Orde r Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in a Foreign Proceeding (“Appl. Denial Order”), Misc. No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 142969, at *1 (D.D.C. Aug. 18, 201 7) (denying petitioners’2 Application for an Order P ursuant to 28 U.S.C. § 1782 to Conduc t Discovery for Use in a Foreign Proceeding and Stmt. Supp. (“Appl.”)), ECF No. 1). 1 The petitioners have been embro iled in multifront litigation ar ound the world for over a decade, arising out of the collaps e of the Yukos Oil Company, o f which the petitioners were majority shareholders. See Appl. Denial Order, 2017 U .S. Dist. LEXIS 142969, at *2–4 (providing background on the legal disputes). The litigation h as largely concerned the Russian

Federation’s seizure of Yukos ’s assets, beginning in 2003 and c ulminating with Yukos’s liquidation in 2007. See id . One part of this litigation is currently pending before the Court of Appeal of the Hague, where the pe titioners have appealed a Dutc h trial court’s 2016 decision to set aside, on jurisdictiona l grounds, over $50 billion in arbit ral awards issued to the petitioners and against the Russian Feder ation based on the allegations of expropriation. See id. ; Hulley

Enters. v. Russian Fed’n , 211 F. Supp. 3d 269, 272–76 (D.D.C. 2016). 2 While the respondents do not currently represent the R ussian Federation, they have re presented, since 2006, Rosneft, which is majority-owned by the R ussian Federation, in connectio n with the petitioners’ “threats

to enforce the . . . arbitration awa rds against Rosneft,” Appl. Denial Order, 2017 U.S. Dist. LEXIS 142969, at *3 (alteration in o riginal) (quoting Resps.’ O pp’n Appl. Discovery Pursuant 28 U.S.C. § 1782 (“Resps.’ Opp’ n”) at 4, ECF No. 11), and other litigation br ought by former Yukos executives in Armenia “to halt Rosneft’s acquisition of a n Armenian Yukos-related

1 The topics for the requested d epositions and fifteen categori es of requested docume nts are enumerated in the following sources: Appl., Att ach. 7, Ex. 1 to Declaration o f Christopher M. Ryan (“Ryan Decl.”), Subpoena Testify Deposition Civ. Action (B aker Botts LLP), ECF No. 1-7; id. , Attach. 8, Ex. 2 to Ryan Decl., Subpoena Testify Deposition Civ. Action (Ryan E. Bull), ECF No. 1-8; id. , Attach. 9, Ex. 3 to Ryan Decl., Subpoena Produce Docs., Information, Objects or t o Permit Inspec. Premises Civ. Action (Baker Botts LLP) (“Subpoena to Baker Botts”), ECF No. 1-9; id. , Attach. 10, Ex. 4 to Ryan Decl. , Subpoena Produce Docs., Info rmation, Objects or to Permit Inspec. Premises Civ. Ac tion (Ryan E. Bull) (“Subpoena t o Ryan E. Bull”), ECF No. 1-10. 2 In a separate matter pending in this Court, the petitioners se ek confirmation of the arbitration awards, but that action has been stayed while the arbitration awards are un der appellate review in the Netherlands. See Hulley , 211 F. Supp. 3d at 272.3 entity, Yukos CIS Investment,” a nd related “legal actions in th e Netherlands, British Virgin Islands, and the United Kingdom.” Id. 3 In a bold move, on June 19, 2017, the petitioners applied, purs uant to 28 U.S.C. § 1782, to obtain discovery for the pe nding Dutch appeal by deposing an d compelling production of documents from respondents regard ing their representation of Ro sneft in the Armenian-related proceedings in 2010 and 2011. See Appl. at 4–8. Specifically, the pe titioners seek evidence of the Russian Federation’s attempts “to manipulate judges in the Armenian courts” at a time when, petitioners contend, “Rosneft, acting through counsel to the Ru ssian Federation, arranged the outcome of several Yukos-related j udicial decisions in Armenia” with at least one decision influencing proceedings in the Netherlands. Id. at 5. The petitioners a ver that they would use the requested evidence defensiv ely to respond “to the Russian F ederation’s submissions” to the Court of Appeal of the Hague a lleging that the petitioners had “unclean hands” and to “allow the Dutch Appellate Court to full y and fairly assess the conduct of the Russian Federation in its dealings with foreign courts.” Id. at 4; Appl. Denial Order , 2017 U.S. Dist. LEXIS 142969, at

*6–8. Although the petitioners’ Applica tion met the statutory require ments for discovery sought under § 1782, the discovery demand w as nonetheless denied as a matter of discretion under the factors required by Intel Corp. v. Advanced Micro Devices, Inc ., 542 U.S. 241, 264–65 (2004). Appl. Denial Order, 2017 U.S . Dist. LEXIS 142969, at *11. The fourth of those factors— “whether the request is ‘unduly i ntrusive or burdensome’”—was t he salient one, id. at *13 (quoting Intel , 542 U.S. at 264–65), especially when balanced against the “th in” and “tenuous”

3 Further details on the relatio nship between the respondents an d Rosneft, as well as between the respondents and the Russian Federation befo re 2016, are set out in the decl aration of William Jeffress previously submitted in this action. See Resps.’ Opp’n, Attach. 1, Declar ation of William H. Jeffress (“ Jeffress Decl.”) ¶¶ 2–3, ECF No. 11- 1.4 relevance and “limited usefulness” of evidence of the Russian F ederation’s purported manipulation of Armenian court proceedings in 2010 and 2011 to a foreign appellate proceeding focused on a jurisdictional issu e relating to events occurring before and up to 2007, id. at *14–17 (citing In re Veiga , 746 F. Supp. 2d 8, 19 (D.D.C. 2010)). I n evaluating the intr usiveness and burdens of the requested discove ry, the Court found that the pl ain terms of the requests targeted “sensitive attorney-client info rmation” and thereby implicated privilege and work-product concerns, which could spawn significant collateral litigation and put at risk significant aspects of respondents’ litigation strat egy on behalf of their client. Id. at *14–17. Accordingly, the burden imposed by the requested discovery was determined to be “simply too significant to warrant granting the Application absent a showing that the requested di scovery would be of even

moderate relevance.” Id. at *17. Undeterred, the petitioners now seek reconsideration of that de cision by rehashing already rejected or unpursued ar guments and contending, for the first time, that the Court must undertake a choice-of-law analysis. See Pet’rs’ Mem. Supp. Mot. Reco nsideration (“Pet’rs’ Mem. Reconsideration”) at 4, E CF No. 15-1. This Motion for Rec onsideration repre sents merely the latest effort to drag this Court into the ongoing internati onal litigation between the parties and

related entities. For the reas ons explained below, the petitio ners’ Motion for R econsideration is

DENIED.

I. LEGAL STANDARD The petitioners invoke Federal Rul e of Civil Procedure 59(e) as the authority to seek

reconsideration of this Court’s Order denying the requested dis covery. 4 “Rule 59(e) permits a

4 The petitioners additionally bring the Motion for Reconsiderat ion under Federal Rul e of Civil Procedure 60(b), but because they filed th e motion twenty-one days after the Court’s Order of Augus t 18, 2017, the motion is considered under Rule 59(e). See Owen-Williams v. BB & T Inv. Servs., Inc. , 797 F. Supp. 2d 118, 121–22 (D.D.C. 2011) (“As a general matter, cou rts treat a motion for reconsid eration as originating under Rule 59(e) if it is filed5 court to alter or amend a judgmen t, but it ‘may not be used to relitigate old matters, or to raise arguments or present evidence th at could have been raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker , 554 U.S. 471, 485 n.5 (2008) (citation omitted); see also Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia , 819 F.3d 476, 485 (D.C. Cir. 2016) (declining to “rehash” consideration of arg uments where the plaintiff fail ed to “raise any new arguments in support of his motion for reconsid eration under Federal Rules 5 9(e) and 60(b)”); District of

Columbia v. Doe , 611 F.3d 888, 896 (D.C. Cir. 2010) (noting that “[i]t is well settled that ‘an issue presented for the first t ime in a motion pursuant to Fede ral Rule of Civil Procedure 59(e) generally is not timely raise d . . .’”) (citation omitted). Th is is because “Rule 59(e) motions are aimed at reconsideration, not initial consideration.” GSS Grp. Ltd v. Nat’l Port Auth. , 680 F.3d 805, 812 (D.C. Cir. 2012) (quoting Doe , 611 F.3d at 896). Only extraordinary circumstances may warrant granting a Rule 59(e) motion, including “an interve ning change of controlling law, the availability of new evidence , or the need to correct a clear error or prevent manifest injustice.” Ciralsky v. CIA , 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996)); see also Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (“[R]econsider ation of a judgment after its entry is an extraordinary remedy which should be used sparing ly.”) (alteration in origina l) (citation omitted); Anyanwutaku v. Moore , 151 F.3d 1053, 1057–58 (D.C. Cir. 1998).

within 28 days of the entry of the order at issue and as origin ating under Rule 60(b) if filed thereafter.”). In any event, “[t]he standards that gov ern Rule 60(b) are even more re strictive” and “‘in most cases, the bar stands even higher for a party to prevail on a Rule 60(b) motion for relief from judgment’ than on a Rule 59(e) motion.” Taitz v. Obama , 754 F. Supp. 2d 57, 58 (D.D.C. 2010) (quoting Uberoi v. EEOC , 271 F. Supp. 2d 1, 2 (D.D.C. 2002)); see also Hall v. CIA , 437 F.3d 94, 99 (D.C. Cir. 2006) (“Relief under Rule 60(b)(1) motions is rare; such motions allow district courts to correct only limited types of substantive er rors.”).6 II. DISCUSSION The petitioners do not argue that co ntrolling law has changed o r that new evidence became available, but only that the denial of their applicationfor discovery was wrong for three reasons, none of which is suffici ently persuasive to disturb th e Court’s previous determination that the plainly significant bur den triggered by the requested discovery overcomes the limited, if any, relevance of this discovery t o the Dutch app ellate proceed ing. First, the petitioners contend that the prior Order “was predic ated on an unsupported assumption” of privilege, see Pet’rs’ Mem. Reconsideration at 2, because the respondents did not precisely identify any document s that were privileged and, in t he petitioners’ view, thereby failed to assert any privilege at all. Id. at 4. This argument is almost farcical, given both the nature of the petitioners’ discovery dema nds, which plainly target privil eged communications and documents between the respondents and its long-standing client, and the respondents’ declaration detailing the nature of their a ttorney-client relationship with Rosneft and the burdens subpoena compliance would engender. See, e.g. , Resps.’ Opp’n, Attach. 1, Declaration of William H. Jeffress (“Jeffress Decl.”) ¶¶ 2–3, ECF No. 11-1 (describing re spondents’ attorney-client relationship with Rosneft and Ru ssian Federation); Resps.’ Opp’ n at 18–19 (discussing “undue burden” discovery demand would impose by requiring the responde nts to prepare a privilege log covering a “broad scope of mate rials,” which could reveal to th e petitioners “strategies and

internal deliberations of their adversaries,” and which would r equire the respondents to expend significant resources to sift th rough a “staggering” amount of data “involv[ing] multiple languages”). For instance, the petitioners pos e discovery demands for “[a]ll Documents and

Communications between Baker Bot ts and Rosneft pertaining to” the Yukos Armenia7 Proceedings, including contacts w ith Rosneft, Rosneft’s subsidi aries, and respondents’ cocounsel, Prudence Legal Advisor y and Counseling (“Prudence Lega l”), “pertaining to the judgments . . . .” Appl., Attach. 9, Ex. 3 to Declaration of C hristopher M. Ryan (“Ryan Decl.”), Subpoena Produce Docs., Information, Objects or to Permit Inspe c. Premises Civ. Action (Baker Botts LLP) (“Subpoena to Baker Bot ts”) at 7 (Request 3), ECF No . 1-9. See also, e.g. , id

. at 8–9 (Request 10) (requesti ng “[a]ll Documents and Communications be tween Baker Botts and Rosneft pertaining to: (a) the relationship of the Yukos Armeni a Proceedings to the decision of the Dutch courts in the Dutch Bankruptcy Proceedings; and (b) the effect the judgment(s) in the Yukos Armenia Proceedings may h ave on the Dutch Bankruptcy Proc eedings”); Appl., Attach. 10, Ex. 4 to Ryan Decl., Subpoena Produce Docs., Information, O bjects or to Permit Inspec. Premises Civ. Action (Ryan E. Bull) (“Subpoena to Ryan E. Bull” ) at 7 (Request 3), ECF No. 1- 10 (seeking “[a]ll Documents a nd Communications between Mr. Bul l and Rosneft pertaining to” the Yukos Armenia Proceedings, including contacts with Rosneft, Rosneft’s subsidiaries, and Prudence Legal, “pertaini ng to the judgments . . .”); id . at 9 (Request 10) (requesting “[a]ll

Documents and Communications betw een Mr. Bull and Rosneft perta ining to” the same subcategories of information rel ated to the Yukos Armenia Proce edings and Dutch Bankruptcy Proceedings as in the Subpoena to Baker Botts). 5 Other discovery demands by the petitioners similarly expressly target the r espondents’ direct communicatio ns with its co-counsel, Prudence Legal, regarding matters implica ting the client’s interests. See Subpoena to Baker Botts at 7 (Request 4) (requesti ng “[a]ny and all Documents between Baker Botts and Prudence Legal

5 The document requests define th e “Yukos Armenia Proceedings” t o refer to Yukos-related decisions in the Armenian courts. Subpoena to Baker Botts at 2–3 (Definitions ¶ 12). The “Dutch Bankruptcy Proceedings” refers to cases in Dutch courts relating to Yukos’s bankruptcy, and th e “Dutch Set Aside Proce eding” refers to the litigation currently pending in th e Court of Appeal of the Hagu e to review the setting as ide of arbitral awards. Id. at 2 (Definitions ¶¶ 5–6).8 pertaining to” the Yukos Armenia Proceedings); Subpoena to RyanE. Bull at 7–8 (Request 4) (seeking “[a]ll Documents and Co mmunications between Mr. Bull a nd Prudence Legal pertaining to” the Yukos Armenia Proceedings). The petitioners’ contention that error occurred by “assuming” p rivilege attached ignores

the obvious fact that the discove ry demands were framed precise ly to cover such privileged

communications and documents. Indee d, the discovery request is predicated on the petitioners’

belief that Rosneft’s counsel w as involved in corrupting the ad ministration of justice in Armenian and Dutch proceedings, making counsel’s communications with Rosneft and its affiliates the precise focus of the discovery. See, e.g. , Appl. at 5 (alleging “Rosneft, acting through counsel to the Russian F ederation, arranged the outcome of several Yukos-related decisions”); id. at 7 (contending that, in the a lleged manipulation, “Rosneft w as assisted by the American legal firm Baker Botts LLP”) (quoting Appl., Attach. 1 5, Ex. 9 to Ryan Decl., Joep Dohmen and Renée Postma, Rosneft manipulated the judici al process in the Netherlands , NRC

H ANDELSBAD (Nov. 24, 2016) (“NRC Article 1”) at 1, ECF No. 1-15); id. (discussing role of respondent Baker Botts partner, R yan Bull, and his associate, I zabella Sarkisyan, as well as Edward Mouradian, an Armenian att orney with Prudence Legal, in the alleged manipulation) (quoting Appl., Attach. 16, Ex. 10 to Ryan Decl. (“Ryan Decl., Ex. 10”), Joep Dohmen and Renée Postma, How Rosneft Turned Rule of Law to Its Own Advantage , NRC H ANDELSBAD (Nov. 24, 2016) (“NRC Article 2” ) at 3, ECF No. 1-16). Although the petitioners c riticize the Court’ s “assumption” of privilege as unsubstantiated, the petitioners’ argument is predicated on a c lear misunderstanding of the law. Specifically, the petitioners repeatedly assert that the respon dents “did not es tablish—or even argue—that any privilege might a pply” to the requested document s, Pet’rs’ Mem.9 Reconsideration at 1, apparentl y because the respondents did no t “identify responsive documents, indicate the number of documents that may be subject to a claim of privilege, or detail the alleged ‘burden’ the y faced—even though it was incon testably their duty to come forward with such evidence,” Pe t’rs’ Reply Mem. Supp. Pet’rs’ M ot. Reconsideration (“Pet’rs’ Reply Reconsideration”) at 1, ECF No. 19. In other words, the petitioners believe, absent the respondents undertaking a massive effort to produce a catalogue of privileged documents generated by over a decade of rep resenting Rosneft, the respond ents “waived” any privilege. Pet’rs’ Reply Resps.’ Opp’n Appl . (“Pet’rs’ Reply”) at 22, ECF No. 13 (“[Respondents’] failure to properly invoke privilege or dem onstrate a burden in their O pposition waives their right to claim these protections.”). To the contrary, when a discove ry request demands production of an attorney’s records in connection with representati on of a client, invocation of the p rotections of the attorney-client privilege and work-product doctr ine may be effective without re quiring a detailed privilege log. Otherwise, any objection to the s cope of a discovery demand wou ld be rendered moot because interposing that objection would t rigger the very burdensome ob ligation to prepare a privilege log that the objection w ould be intended to avoid. See Dell Inc. v. Decosta , 233 F. Supp. 3d 1, 3–4 (D.D.C. 2017) (concurring with defendants that document requests “served on prior counsel” were “overbroad and unduly burdensome” since complianc e “would impose an undue and disproportionate burden on Def endants to prepare a privileg e log of the thousands of

documents that Defendants coul d reasonably be expected to ‘poss ess’ after a deca de of [client] representation but most of whi ch would be protected by the atto rney-client privilege or attorney work-product doctrine”); Prism Techs., LLC v. Adobe Sys. , No. 8:10CV220, 2011 U.S. Dist. LEXIS 131321, at *10–13 (D. Ne b. Nov. 14, 2011) (adopting “assu mption[]” used by other10 courts “that limit[s] the necessi ty to create such ‘privilege l ogs’ of communications between a party and counsel in cases where a ttorney-client privilege is e vident, particularly when the communications are voluminous”) (citing United States v. Bouchard Transp. , No. 08-CV-4490 (NGG) (ALC), 2010 U.S. Dist. LEX IS 37438, at *4 (E.D.N.Y. Apr. 14, 2010) (“[P]rivilege logs are commonly limited to documents created before the date litig ation was initiated . . . . [I]n many situations, it can be assumed that all documents created a fter charges have been brought or

a lawsuit has been filed and w ithheld on the grounds of privile ge were created ‘because of’ that pending litigation.”); Ryan Inv. Corp. v. Pedregal De Cabo San Lucas , No. C 06-3219, 2009 U.S. Dist. LEXIS 118337, at *9 ( N.D. Cal. Dec. 18, 2009) (denyi ng plaintiff’s motion to compel, explaining that “counsel’s comm unications with the client and w ork product developed once the litigation commences are presum ptively privileged and need not be included on any privilege log”)). The petitioners acknow ledge the immense burden on resp ondents that would be triggered by the broad discovery demands f or privileged and protected inf ormation and suggest only that the Court participate in narrowing the scope. See Pet’rs’ Reply Reconsideration at 6. 6 In sum, simply because the Court agreed with respondents about the scope and sensitivity of the requested discovery, with its concomitant cost and burde ns, and made a determination on the Application without requiri ng a privilege log, Appl. Denial Order, 2017 U.S. Dist. LEXIS

6 The petitioners contend that theyonly “seek two narrow catego ries of documents” f rom “a discreet time period”—“(a) communications between the Respondents and specifi c entities relating to judgments” in Armenia and the Netherlands and “(b) ex parte communications between the Respondents and Armenian, Russian, and Dutch government officials relating to those legal proceedings,” Pet’ rs’ Reply Reconsideration at 6—but this characterization is belied by the text of the discovery demands submitted with the original Application. Specifically, the petitioners’ Application seek s fifteen categories of docume nts, with, as noted, specific requests for respondents’ communications with their client concerning matters in which re spondents were represen ting or assisting in representing their client in pr oceedings involving Yukos in bot h the Armenian courts and the Dutch courts. See Subpoena to Baker Botts at 6–10; Subpoena to Ryan E. Bull at 6– 10; see also Resps.’ Opp’n at 15–16 & n.9 (discussing “broadly intrusive” requests). With regard to the communications with foreign officials, the petitioners contend the communications would not be privileged because they involve third parties, see Pet’rs’ Mem. Reconsideration at 10–12, but to the extent requests for such d ocuments are integrated into the other broad requests, determining where exceptions may apply would only add to the bu rden of complying with the discovery sought.11 142969, at *17, does not mean it either misunderstood or missedsome consideration requiring

modification of the Order. 7 Second, the petitioners raise a b rand new argument about the ne cessity of a choice-of-law analysis, contending that such an a nalysis would show that eith er Russian or Armenian law applies, and neither law would pr otect the requested documents. Pet’rs’ Mem. Reconsideration

at 4–12. Nothing about the law, howev er, has changed since the or iginal briefing, which, to the extent foreign laws were consid ered, contained discussion only about the applicability of Dutch attorney-secrecy rules. See Pet’rs’ Reply at 11–15. This ch oice-of-law argument is, thus, not timely raised. Patton Boggs LLP v. Chevron Corp ., 683 F.3d 397, 403 (D.C. Cir. 2012) (finding

no abuse of discretion in denial of reconsideration “[b]ecause Rule 59(e) is not a vehicle to present a new legal th eory that was available prior to judgment ”). In any event, contrary to the pe titioners’ argument, American l aw on privilege would not automatically be displaced here. “ Because the jurisdictional ba sis for this action rests on a federal statute, federal comm on law governs any assertions of p rivilege.” In re Veiga , 746 F. Supp. 2d at 32. Although “the protections afforded by § 1782(a ) also extend to privileges recognized by foreign law,” suc h foreign privileg es “only [appl y] in certain narrow and

circumscribed circumstances.” Id. The petitioners believe such cir cumstances exist here since the requested discovery targets r espondents’ communications with their client re garding foreign

7 The petitioners’ reliance on People for the Ethical Treatment of Animals v. U.S. Dep’t of Health & Human Servs. ( PETA ), 226 F. Supp. 3d 39, 46–50 (D .D.C. 2017) and other nonbinding district court cas es is misplaced. See Pet’rs’ Reply Reconsideration at 5; Pet’rs’ Mem. Reconsideratio n at 3–4. In PETA , the parties were relieved, under Rule 60(b), from a summary judgment order after new, previously undisclosed information was presented that rendered the original order “inherently unfair to the third parties whose business information is at risk.” PETA , 226 F. Supp. 3d at 46–50. By contrast, in this c ase, the petitioners “have not pointed to facts unavailable to them at the time of the underlying briefing,” Resps.’ Opp’n Reconsideration at 6, and no “harm to the i nterests of third parties, as opposed to the erring litig ant,” which was central to PETA ’s holding, see PETA , 226 F. Supp. at 47, is at issue here. More significantly, given that the Court has “considerab le” discretion under the Intel factors, see Lazaridis v. Int’l Ctr. for Missing & Exploited Children (In re Order Pursuant to 28 U.S.C. § 1782) , 473 F. App’x 2, 4 (D.C. Cir. 2012), the petitioners have hardly shown that the denial of the Application under those factors is “inherently unfair.”12 litigation and, further, that if t he law of either Russia or Armenia applied, communications with the attorneys in these countries would not be protected because the respondents are not registered

as “advokats” in Russia or “advoc ates” in Armenia. Pet’rs’ Mem . Reconsidera tion at 6–9. In the petitioners’ view, countries whe re the litigation occurred have stronger interests than the United States, notwithstanding that the r equested discovery targets th e records, communications and

work of U.S. counsel. The petitioners’ position rais es a host of thorny issues. Give n the parties’ disputes about the protections provided by for eign law, the Court would be dra wn into legal experts’ debates about the meaning and scope of the laws of at least two, and pe rhaps more, countries. In addition, as the respondents point out, a choice-of-law analysi s would likely result in a “hybrid regime that combines narrow foreig n privilege rule s with broad U.S. discovery.” Resps.’ Opp’n Pet’rs’ Mot. Reconsideration (“R esps.’ Opp’n Reconsideration”) at 14, ECF No. 17. Indeed, the finding urged by petitioners that no foreign attorney-client pr ivilege law would protect the requested documents would encour age parties involved in ligatio n overseas to exploit the broad discovery regime available under the Federal Rules of Civil Pro cedure while simultaneously seeking to defeat fundamental prot ections for attorney-client p rivilege and work product guaranteed by the American legal system. See Upjohn Co. v. United States , 449 U.S. 383, 389 (1981) (emphasizing importance of attorney-client privilege bec ause of its purpose “to encourage

full and frank communication betw een attorneys and their client s and thereby promote broader public interests in the observ ance of law and administration of justice”). This result would be particularly problematic for pub lic policy reasons, including t hat a hybrid regime would “reach results” on privilege and discoveryissues that “no affected jurisdiction would reach on its own.”13 Resps.’ Opp’n Reconsideration a t 14. These issues of foreign p rivilege laws need not be addressed now on reconsideration, h owever, because they were no t previously raised. Finally, the petitioners revive an argument previously relegate d to a short footnote in their reply brief that any app licable privilege would be “under mined by the fact that the communications sought involve alleg ations of criminal and fraud ulent activity.” Pet’rs’ Mem. Reconsideration at 14; Pet’rs’ Reply at 18 n.6 (commenting that , as the respondents “have not formally invoked a privilege, the Petitioners cannot fully addr ess the scope of [the crime-fraud] exception, but reserve the rightto do so if the Witnesses atte mpt to assert a privilege in the future”). As support, the peti tioners rely on “allegations of manipulation . . . supported by the articles, emails, and judicial affidavit submitted with the 178 2 Application.” Pet’rs’ Reply Reconsideration at 20; see also Pet’rs’ Mem. Reconsideration a t 12–13. Notably, these material s were submitted with the original Application and contain nothin g new for the motion for reconsideration. In any case, on thi s record, the petitioners fail to establish a prima facie case for applying the crime-fraud exception.

The doctrine of the crime-fraud “ [e]xception comes into play wh en a privileged relationship is used to further a crime, fraud, or other fundam ental misconduct.” In re Sealed

Case , 676 F.2d 793, 807 (1982). 8 If the crime-fraud exception a pplies, then the attorney-clien t communications are not privileged. In re Grand Jury , 475 F.3d 1299, 1305 (D.C. Cir. 2007); In

re Sealed Case , 754 F.2d 395, 399 (D.C. Cir. 1985). To satisfy its burden of proof to show that the crime-fraud exception applies, a party may offer “evidence that if believed by the trier of fact

8 The crime-fraud exception also applies to work-product protect ion, requiring “some valid relationship between the work product under subpoena and the prima facie vio lation.” In re Sealed Case , 676 F.2d at 814–15. As previously noted in this opinion and in the prior Order, both attorney-client and work-product protections are implicated by the scope of the discovery demands at issue. See Appl. Denial Order, 2017 U.S. Dist. LEXIS 142969, at *17.14 would establish the element s of an ongoing or imminent crime or fraud,” In re Grand Jury , 475 F.3d at 1305 (internal quotation m arks and citation omitted), b ut it “need not prove the existence of a crime or fraud beyond a reasonable doubt,” In re Sealed Case , 754 F.2d at 399. “The determination that a prima facie showing has been made lies with in the sound discretion of the district court,” id. , which must “independently exp lain what facts would support th [e]

conclusion” that the crim e-fraud exception applies, Chevron Corp. v. Weinberg Grp. , 682 F.3d 96, 97 (D.C. Cir. 2012). The petitioners’ submissions here fall short of making a prima facie showing that the crime-fraud exception would apply to the respondents’ assertion s of privilege. Of the over 130 pages of exhibits on which the pe titioners rely to make their c ase for the exception, including three newspaper articles, one a ffidavit of a former judicial of ficer, three email chains, and two images of alleged draft decisions with track changes, only two of the articles, from the same Dutch publication by the same aut hors published on the same day , make direct allegations about

Baker Botts’s involvement with R osneft in any purported manipul ation of the Armenian courts.

See NRC Article 1 at 1; NRC Article 2 at 3. The remaining a rticle discusses “Rosneft l awyers” without mentioning respondents, see generally Appl., Attach. 17, Ex. 11 to Ryan Decl.,

Catherine Belton a nd Michael Stott, Rosneft lawyers manipulated Yukos rulings, emails suggest , F INANCIAL T IMES (Nov. 28, 2016), ECF No. 1-17, and indis putably Rosneft employ s other counsel in addition to respondents. 9 Meanwhile, the emails, which the parties do not dispute were obtained through an unauthorized access “hack” in 2013, see Resps.’ Opp’n at 5 (citing NRC Article 2 at 2, provided by peti tioners), and track-changed documents lack any context

9 The respondents contend, largely based on the timing of the ar ticles in connection with another Dutch proceeding involving Yukos-rela ted entities, that the reports c ited by the petitioners “were obviously based on information and arguments given to reporters by representatives of the Yukos parties.” Resps.’ Opp’n at 6.15 implicating Rosneft’s use of its relationship with Baker Botts or the firm’s work product to manipulate a court. 10 Furthermore, the affidavit of aformer Armenian judicial offi cer, who is now apparently on the petitioners’ payroll, discusses pressures he experienced from other Armenian judicial offers to issu e judgments that were not his o wn, again, with no reference to respondents. Ryan Decl., Ex. 10(2) (Written Statement, dated O ct. 19, 2012, by Surik Ghazaryan, ¶¶ 17, 20–21). 11 The petitioners now ask for a sig nificant logical leap to tie together these disparate materials, w ith virtually no reference to respo ndents other than in the cited press articles, as establishing that respondents were engaged in ongo ing or imminent crime or fraud. Indeed, the very fact that the petitioners submitted the articl es, emails, documents, and affidavit in the original round of briefi ng but did not then rely on the materials to make any crime-fraud exception argument reflects a recognition that these materials do not establish a basis for applying this exception to avoid t he otherwise applicable prote ctions afforded by the attorneyclient privilege and work-product doctrine. 12

10 These materials are provided without much context necessary fo r evaluating their pr obative value. For instance, the petitioners submitted an email purportedly from M r. Mouradian of Prudence Legal instructing another attorney within the firm to “dele te all communication” regardin g the “top secret” contact with “the head of the department of prosecution Armen Nikoghosyan” about “the develop ment of the cases,” but the text provides no other detail about the “communication” at issue or, more signif icantly, the relationship to Baker Botts. See Ryan Decl., Ex. 10(5) (Email , dated July 17, 2010, from Edward Moura dian to Karapet Badalyan ). The petitioners also cite emails from a Rosneft employee to a colleague about a “sec ret” scheme and “use of Armenian government officials in the scheme” that als o make no reference to the res pondents. See Pet’rs’ Reply Reconsideration at 20 (citing emails in Ryan Decl., Ex. 10(4)(a)–(b) (Emails, dated June 21 and 24, 2010, from Elen a Zavaleeva to Nikita Tolstikov)). Furthermore, petiti oners cite an email from the R osneft employee to respondent Mr. Bull asking him to review “substantiation of a possible decision of the Court of C assation” to determine if it “answers our interests on account of the case in Holland,” without add itional informationas to how that information would be or may have been used. See Ryan Decl., Ex. 10(9)(a)–(b) (Email, dated July 19, 2010, from Elen a Zavaleeva to Edward Mouradian and Ryan Bull). Finally, regarding the track-changed documents of Court of Cassation decision drafts,

see Ryan Decl., Exs. 10(7)–(8) (providing images of documents), th e petitioners offer no i nsight into whether Armenian courts require litigants to provide draft orders in so me capacity, akin to the practice in this Court. See LCvR 7(c) (“Each motion and oppo sition shall be accompanied by a proposed order.”). 11 The financial ties between Judge Ghazaryan and the petitioners are discussed in an article relied on by the petitioners, see NRC Article 2 at 2 (“Ghazaryan r eceived assistance from the Yu kos camp, which is also supporting him financially.”), and the petitioners do not otherwise disput e that the former judicial official is compensated by Yukos. 12 The petitioners ask, in the alte rnative, for the Court to cond uct an in camera review of “the materials” but fail to specify the nature, vol ume, or source of such evidence. Petr’s’ Reply Reconsideration at 23. In camera , ex16 *** The petitioners’ arguments fail to demonstrate that any “clear error” occurred or “manifest injustice” resulted fro m the denial of their discover y demands to respondents. See Ciralsky , 355 F.3d at 671; Firestone , 76 F.3d at 1208. Instead, the prio r assessment correctly concluded that the discovery req uests pose an extraordinary bur den on the respondents and the Court to identify and resolve the inevitable privilege and work -product issues, sin ce the requests target a decade-long attorney-clie nt relationship and, as such, also pose a significant risk of revealing litigation strate gy in ongoing proceedings. Appl. De nial Order, 2017 U.S. Dist. LEXIS 142969, at *13–17. Those burdens and ris ks are not warranted g iven that the petitioners have failed to show “that the request ed discovery would be of even m oderate relevance” in the Dutch appellate proceeding. Id . at *17.

III. CONCLUSION For the foregoing reasons, the pe titioners have not shown that reconsideration of their Application for discovery, pur suant to 28 U.S.C. § 1782, is warranted. Accordingly, it is hereby

ORDERED that the petitioners’ Motion f or Reconsideration, ECF No. 15, is DENIED

. SO ORDERED. Date: December 9, 2017

__________________________ BERYL A. HOWELL Chief Judge

parte proceedings may be used to determ ine the existence of a crime- fraud exception to privilege “when such proceedings are necessary to ensu re the secrecy” of ongoing pro ceedings. In re Grand Jury Subpoena, Judith Miller , 438 F.3d 1141, 1151 (D.C. Cir. 2006) (quoting In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998)). “[ I ] n camera , ex parte submissions generally deprive one party to a proceeding of a f ull opportunity to be heard on an issue, and thus should only be used where a comp elling interest exists.” In re Sealed Case No. 98- 3077, 151 F.3d at 1075 (internal citation and quotation marks o mitted). No “compelling inte rest exists” here and, consequently, the request for in camera review is denied.