United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES, United States District Judge
the Court is  defendant Evelina Lekser's motion for
a protective order to determine whether or not certain
documents are privileged and therefore not subject to
Konstantin Shvartser served Lekser with his First Set of
Interrogatories and First Set of Requests for Production of
Documents on February 23, 2017. See Pl.'s Mot.
to Compel, Ex. C [ECF No. 67-3]. After substantial delay and
several court orders, Lekser provided a response to the
interrogatories on May 1 and some responsive documents on May
8. See Pl.'s Mot. to Compel, Exs. G, H, I [ECF
No. 67-3]. Following briefing and a hearing held on June 15,
2017, the Court granted Shvartser's motion to compel and
ordered Lekser to provide complete responses to
Shvartser's discovery requests by June 30, 2017.
See June 16, 2017, Mem. Op. & Order [ECF No.
80]. Then, following another status conference and a phone
call, the Court issued another two orders requiring Lekser to
provide complete responses to Shvartser's discovery
requests. July 11, 2017, Scheduling Order [ECF No. 96]; Aug.
2, 2017, Order [ECF No. 100]. In response to these Court
orders, Lekser produced some documents to Shvartser; however,
she also asserted that some documents and interrogatory
responses were protected by privilege, on the grounds of a
non- disclosure agreement and diplomatic immunity.
See Def.'s Mot. for Protective Order [ECF No.
103]. On August 10, 2017 Lekser filed this motion seeking a
protective order to shield the documents that she believes
are privileged. Id. Shvartser opposes the motion.
See Pl.'s Opp'n [ECF No. 104]. In response
to a court order, Lekser submitted one document-the
non-disclosure agreement-for in camera review.
See Aug. 18, 2017, Order [ECF No. 107] (order
requiring privilege log); Def.'s Privilege Log [ECF No.
108]; Aug. 23, 2017, Minute Order (requiring submission of
potentially privileged documents for in camera
Court then held a hearing on this matter on Tuesday,
September 6, 2017. At that hearing, Lekser represented that
she is only claiming that two documents are privileged: a
nondisclosure agreement between herself and someone
identified as Lord William Holden, and a lease agreement
between herself and Mr. Holden. She stated that, despite any
contrary representations in her filings or Shvartser's
filings, those are the only two documents in her possession
that are responsive to plaintiff's discovery requests but
that she believes she cannot produce due to privilege. She
also represented that she is no longer claiming that any
documents are protected by diplomatic immunity. Rather, she
claims that both of the withheld documents are privileged by
virtue of the non-disclosure agreement itself. During the
hearing, she did not present any argument that the
non-disclosure agreement is not relevant to plaintiff's
discovery requests, and in fact, Shvartser (through counsel)
represented that he believes that the non-disclosure
agreement is relevant and therefore responsive to his
reviewed the parties' filings, reviewed in
camera the non-disclosure agreement, and considered the
parties' representations during the hearing held on
September 6, the Court finds that the non-disclosure
agreement does not create any privilege that protects
documents from discovery, and therefore neither the
non-disclosure agreement nor the lease are privileged. The
Court therefore denies Lekser's motion for a protective
order and orders her to produce these two documents to
Shvartser as instructed below.
general rule, “confidentiality agreements will not
stand as a barrier to discovery between two parties in
litigation.” Saini v. Int'l Game Tech.,
434 F.Supp.2d 913, 922 (D. Nev. 2006); see also Multiven,
Inc. v. Cisco Sys., Inc., 2010 WL 583955, at *3 (N.D.
Cal., Feb. 16, 2010); In re Grand Jury Subpoena, 148
F.3d 487, 492 (5th Cir. 1988)
(“‘Confidential' does not necessarily mean
‘privileged.'”); Nguyen Da Yen v.
Kissinger, 528 F.2d 1194, 1205 (9th Cir. 1975). There
certainly may be instances where information that happens to
be covered by a nondisclosure agreement-such as trade
secrets-is privileged and thereby protected from discovery.
However, the non-disclosure agreement itself does not confer
a legal privilege from discovery on any documents that were
not already privileged.
is a wide range of scenarios where the parties'
legitimate interests in their privacy makes a protective
order appropriate to safeguard information disclosed in
discovery. Indeed, courts “commonly require parties to
produce confidential documents; the confidentiality of those
documents is protected not by denying access to them, but by
entering a protective order to cover them.”
Promotional Marketing Insights, Inc. v. Affiliated
Computer Servs., Inc., 2012 WL 3292888, at *1 (D. Minn.,
Aug. 13, 2012). Such protective orders are not of the type
that Lekser seeks here-here, Lekser seeks an order
determining that certain documents are privileged-but rather,
are of the type that limit the opposing party's ability
to use the documents for purposes outside of the litigation.
A protective order of that sort is already in place in this
matter. See Confidentiality Agreement and Protective
Order, June 13, 2017 [ECF No. 74].
this case invokes the Court's diversity jurisdiction, any
applicable privilege comes from state law. See
Fed.R.Evid. 501. Neither party has identified any relevant
D.C. law regarding whether business documents subject to a
confidentiality agreement are privileged from discovery. The
Court, in its own research, has not found any basis for such
a privilege in D.C. law.
case that Lekser cites is consistent with these general
rules. In that case, this court considered whether a
non-party could be compelled to provide information about
litigation in the U.S. District Court for the District of
Maryland. The court determined that it certainly could not
order a non-party to violate an “existing court-ordered
or court-approved” confidentiality agreement entered by
the District of Maryland, and that it would not order the
non-party to “violate the terms of any . . . privately
stipulated confidentiality agreement” regarding the
District of Maryland litigation as well. Peskoff v.
Faber, 230 F.R.D. 25, 31 (D.D.C. 2005). That is a
different scenario than the one here. In this matter, the
discovery is directed toward a party, and the nondisclosure
agreement is not related to any matters that are subject to
ongoing litigation in another court, much less any matter for
which another court has entered confidentiality orders.
Court thus concludes that the non-disclosure agreement does
not confer any privilege on any document that might be
subject to that agreement. Therefore, neither the agreement
itself, nor the lease, are privileged by virtue of the
non-disclosure agreement. The Court will accordingly deny
Lekser's motion for a protective order that prevents her
from disclosing these documents on the grounds of privilege.
The Court recognizes Lekser's legitimate interest in
keeping business information confidential and therefore
reiterates that the parties are bound by the protective order
entered on June 13, 2017.
reasons explained above, the Court finds that the
non-disclosure agreement between Lekser and Mr. Holden and
the lease between Lekser and ...