United States District Court, District of Columbia
IN RE: APPLICATION OF INTERNATIONAL MINERAL RESOURCES BV. FOR AN ORDER TO TAKE DISCOVERY PURSUANT TO 28 U.S.C. § 1782, Applicant.
GLADYS KESSLER, District Judge.
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.
On April 3, 2014, IMR filed an Application for an Order to Take Discovery Pursuant to 28 U.S.C. § 1782 ("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].
On April 7, 2015, at IMR's deposition of Mr. Akhmetshin, following the advice of counsel, he declined 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,  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.
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 nontestifying expert witness privilege codified at Fed.R.Civ.P. 26(b) (4) (D), attorney-client privilege, 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. 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" ("nontestifying experts"). Fed.R.Civ.P. 26(b)(4)(D). "Experts in 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); 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(h) (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 ...