United States District Court, District of Columbia
IN RE MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DIRECTED TO COOKE LEGAL GROUP, PLLC
REPUBLIC OF THE SUDAN, et al., Defendants. JAMES OWENS, et al., Plaintiffs, JUDITH ABASI MWILA, et al., Plaintiffs,
ISLAMIC REPUBLIC OF IRAN, et al., Defendants. RIZWAN KHALIQ, et al., Plaintiffs,
REPUBLIC OF THE SUDAN, et al., Defendants.
D. BATES, UNITED STATES DISTRICT JUDGE.
are judgment-holders seeking to locate and attach assets
owned by defendants the Republic of the Sudan and the Islamic
Republic of Iran. Plaintiffs move for the Court to order
nonparty Cooke Legal Group, PLLC (“Cooke”), to
produce documents in compliance with a third-party subpoena
issued on May 1, 2019. Pls.' Mot. to Compel Compliance
with Subpoena Directed to Nonparty Cooke Legal Grp., PLLC
(“Pls.' Mot.”) [ECF No. 1] at 2. For the
reasons detailed below, the Court grants plaintiffs'
motion. Cooke's broad, generally unsupported objections
are unavailing, and it must produce the requested materials.
discovery dispute stems from the litigation that followed the
1998 terrorist bombings at the U.S. embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania. See, e.g.,
Owens v. Republic of Sudan, 174 F.Supp.3d 242,
247-48 (D.D.C. 2016). Plaintiffs hold judgments against the
Republic of the Sudan and the Islamic Republic of Iran.
See Order, Owens v. Republic of Sudan, Civ.
Action No. 01-2244 (D.D.C. Mar. 28, 2014) [ECF No. 301];
Order, Mwila v. Islamic Republic of Iran, Civ.
Action No. 08-1377 (D.D.C. Mar. 28, 2014) [ECF No. 88];
Order, Khaliq v. Republic of Sudan, Civ. Action No.
10-356 (D.D.C. Mar. 28, 2014) [ECF No. 40]. To date,
plaintiffs have received no compensation under those
judgments and are in the midst of discovery to identify
defendants' assets for attachment. See Mem. in
Supp. of Pls.' Mot to Compel Compliance with Subpoena
Directed to Nonparty Cooke Legal Grp, PLLC (“Pls.'
Mem.”) [ECF No. 1-1] at 2.
issued a subpoena to nonparty Cooke on May 1, 2019, seeking
information regarding the firm's past work advising Sudan
on debt restructuring. Ex. 1 to Pls.' Mot.
(“Subpoena”) [ECF No. 1-4] at 2,
14-15. Plaintiffs hope to glean information about
how Sudan paid Cooke and about Sudan's other commercial
activities and assets both in the United States and abroad.
Pls.' Mem. at 2.
and Cooke met and conferred on May 23, 2019. Ex. 7 to
Pls.' Mot. (“May 29 Letter”) [ECF No. 1-10]
at 2. According to plaintiffs, “Cooke Legal represented
[at that meeting] that it had identified over 1, 000
potentially responsive documents, ” but “asserted
a blanket claim of privilege over all of them and took the
position . . . that it would not produce those
documents.” Ex. 9 to Pls.' Mot. (“June 28
Letter”) [ECF No. 1-12] at 2. Plaintiffs thereafter
sent a letter on May 29, 2019, responding to Cooke's
claim that it did not possess any responsive, non-privileged
documents. May 29 Letter at 2-3. Plaintiffs followed up with
letters on June 17 and June 28, but they received no
response. June 28 Letter at 2-3; Pls.' Mem. at 6. On
September 6, 2019, plaintiffs filed this motion to compel
compliance with their May 1, 2019 subpoena. Pls.' Mot. 2.
responded on October 22, 2019, objecting to each of
plaintiffs' requests and refusing to turn over any
documents related to Sudan. Non-Party Cooke Legal Grp.'s
Resp. & Objs. to Third Party Subpoena Issued by the Pls.
(“Cooke's Resp.”) [ECF No. 6] ¶¶
1-7. According to Cooke, one of its prior partners, Mr.
Thomas Laryea, began working with Sudan while he was a
partner at Dentons Law Firm and continued that representation
when he became a partner at the now-defunct Cooke Robotham,
LLC. Decl. & Claim of Privilege (“Cooke
Decl.”) [ECF No. 6-1] ¶ 3. Since then, Cooke
Robotham has dissolved and the present firm, Cooke Legal
Group, has been established. Id. Cooke maintains a
“joint email system” that appears to retain at
least some records from Mr. Laryea's time at Cooke
Robotham, but Mr. Laryea is not presently affiliated with the
argues that Mr. Laryea or Dentons is the proper target of
plaintiffs' subpoena, and that the firm lacks Mr.
Laryea's “permission” to release portions of
the joint email system related to his work with Sudan.
Id. Cooke also contends that whatever responsive
documents it may possess are protected under attorney-client
or work-product privilege. Cooke's Resp. ¶¶
1-7. And the firm objects to various other aspects of
plaintiffs' subpoena. Id. Plaintiffs filed a
reply, see Reply Br. in Supp. of Pls.' Mot. to
Compel Compliance with Subpoena Directed to Nonparty Cooke
Legal Grp., PLLC (“Pls.' Reply”) [ECF No. 7],
and the matter is now ripe for consideration.
Rule of Civil Procedure 45 permits a party to command, via
subpoena, the production of documents that are in the
“possession, custody, or control” of a nonparty.
Fed.R.Civ.P. 45(a)(1)(A)(iii). “Control is the test
with regard to the production of documents and is defined not
only as possession, but as the legal right to obtain the
documents on demand.” In re Barnwell Enters.
Ltd, 265 F.Supp.3d 1, 16 (D.D.C. 2017) (citation
omitted). “It does not require that the party have
legal ownership or actual physical possession of the
documents at issue, but rather the right, authority, or
practical ability to obtain the documents from a non-party to
the action.” Id. (internal quotation marks
nonparty responding to a subpoena need not produce documents
protected by attorney-client privilege. See In re Sealed
Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984); see
also Fed.R.Civ.P. 45(e)(2). As the D.C. Circuit has
The privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the bar of
a court or his subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed (a) by
his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion on law or
(ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b)
not waived by the client.
Sealed Case, 737 F.2d at 98-99 (internal quotation
omitted). Communications from attorneys to their clients are
covered only “if they rest on confidential information
obtained from the client.” Id. at 99.
work product protection is broader than the attorney-client
privilege in that it is not restricted solely to confidential
communications between an attorney and client.” FTC
v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 149
(D.C. Cir. 2015). “It is narrower, however, insofar as