Motion to Compel Compliance With Subpoena Directed to Cooke Legal Group, Pllc ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA Misc. Action No. 19-0148 (JDB)
DIRECTED TO COOKE LEGAL
GROUP, PLLC
JAMES OWENS, et al.,
Plaintiffs,
v. Civil Action No. 01-2244 (JDB)
REPUBLIC OF THE SUDAN, et al.,
Defendants.
JUDITH ABASI MWILA, et al.,
Plaintiffs,
v. Civil Action No. 08-1377 (JDB)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
RIZWAN KHALIQ, et al.,
Plaintiffs,
Civil Action No. 10-0356 (JDB)
v.
REPUBLIC OF THE SUDAN, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs 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.
BACKGROUND
This 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.
Plaintiffs 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, 14–15.1 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.
1
For the sake of clarity, all page numbers herein refer to the CM/ECF pagination, rather than to documents’
internal pagination.
2
Plaintiffs 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.
Cooke 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 firm. Id.
Cooke 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
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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.
LEGAL STANDARD
Federal 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 omitted).
A 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 summarized:
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.
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“The 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 the doctrine protects only work performed in anticipation of
litigation or for trial.” Id.
ANALYSIS
Cooke raises three blanket objections to plaintiffs’ subpoena. First, Cooke contends that it
“has no documents responsive to [plaintiffs’] request[s].” Cooke’s Resp. ¶¶ 1–7. Plaintiffs contest
this claim, noting that Cooke stated during a May 23, 2019 conference call that “a basic search of
‘Sudan’ in Mr. Thomas Laryea’s email records hit on approximately 1,000 documents.” May 29
Letter at 3. The claim is also belied by the firm’s own statements that it retains a “joint email
system” possibly containing information related to Mr. Laryea’s previous work performed on
behalf of Dentons for Sudan. Cooke Decl. ¶ 3. Cooke’s bald statements that it has no responsive
documents are thus unavailing.
Cooke suggests that, even if it could access the documents in question through this “joint
email system,” the subpoena is misdirected because the documents belong to the now-defunct
Cooke Robotham, to Mr. Laryea, or to Dentons. Id. But this contention contradicts the plain
language of Rule 45. When served a subpoena, a nonparty is required to produce records that are
in its “possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). Cooke does not deny
possessing this joint email system and having the “practical ability to obtain the documents,” and
it is thus required to comply with the subpoena. Barnwell Enters., 265 F. Supp. 3d at 16 (citation
omitted). Rule 45 uses the disjunctive “or,” and a party who has any of “possession, custody, or
control” must comply with a properly issued subpoena. See, e.g., id. (requiring employer to
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produce documents it controlled, but did not possess); see also In re Citric Acid Litig., 191 F.3d
1090, 1107 (9th Cir. 1999) (noting that if party has control, but not possession or custody, that
party must still comply with Rule 45 subpoena); In re Bankers Trust Co., 61 F.3d 465, 469 (6th
Cir. 1995) (noting that “legal ownership of the document is not determinative” for evaluating
whether a party has “possession, custody or control” for purposes of Federal Rule of Civil
Procedure 34(a)). Cooke protests that it does not have Mr. Laryea’s “permission to release any
portion of the joint email system.” Cooke Decl. ¶ 3. Mr. Laryea has not moved to quash the
subpoena, however, and aside from claiming that certain documents are privileged, which the
Court addresses below, he would have no legal basis upon which to object to the instant subpoena.
See Kennedy v. Basil, No. 18-CV-2501 (ALC) (KNF), 2018 WL 4538898, at *4 (S.D.N.Y. Sept.
20, 2018); United States v. SouthernCare, Inc., Case No. CV410-124, 2015 WL 5604367, at *2
(S.D. Ga. Sept. 23, 2015).
Second, Cooke argues that all of plaintiffs’ requests are “overly broad, unduly burdensome,
vague, ambiguous, and not reasonably specific.” Cooke’s Resp. ¶¶ 1–7. Even assuming that
Cooke did not waive these points by failing to serve written objections within fourteen days of
being served with the subpoena, but see Fed. R. Civ. P. 45(d)(2)(B) (requiring objections within
fourteen days of service); Alexander v. FBI, 186 F.R.D. 21, 34 (D.D.C. 1998) (noting that
objections that fail to comply with current Fed. R. Civ. P. 45(d)(2)(B) typically are waived), none
of the points is persuasive.
The Court “entertains an unduly burdensome objection when the responding party
demonstrates how the document is overly broad, burdensome, or oppressive, by submitting
affidavits or offering evidence which reveals the nature of the burden.” Tequila Centinela, S.A.
de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 10 (D.D.C. 2007) (internal quotation marks omitted).
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Cooke has failed to articulate, let alone demonstrate by affidavit or evidence, that compliance with
the subpoena would be overly burdensome or unfeasible. Although medical issues may have
delayed production of the responsive documents, see Cooke Decl. ¶ 3, plaintiffs’ subpoena is not
the source of that particular burden. Nor are the specific document requests “vague” or
“ambiguous.” See Subpoena at 14–15 (describing with sufficient specificity the documents
requested). Ultimately, plaintiffs request information relating to the assistance that Cooke
provided to Sudan while the nation sought to restructure its debt. See id. at 6–15. Such information
is “relevant to determining Sudan’s potentially attachable assets,” Amduso v. Republic of Sudan,
288 F. Supp. 3d 90, 95 (D.D.C. 2017), and absent any persuasive argument to the contrary by
Cooke, the boilerplate objections it advances here carry no weight.
Third, Cooke objects that plaintiffs’ requests “call[] for production of documents subject
to the attorney-client privilege, attorney work product doctrine, and any other applicable
privileges.” Cooke’s Resp. ¶¶ 1–7. But Cooke fails to satisfy its burden of “present[ing] to the
court sufficient facts to establish the [claimed] privilege[s],” which it must do “with reasonable
certainty.” Sealed Case, 737 F.2d at 99. It is not obvious that most, if any, of the documents that
plaintiffs seek qualify under either the attorney-client privilege or the work-product privilege. The
latter privilege applies to “work performed in anticipation of litigation or for trial,” Boehringer
Ingelheim, 778 F.3d at 149, but the documents in question pertain to Cooke’s work related to debt
restructuring, Ex. 2 to Pls.’ Mot. (“FARA Registration”) [ECF No. 1-5] at 4. This Court’s review
of the record reveals no mention of litigation on that matter.
Nor can Cooke turn to the attorney-client privilege as an excuse for entirely failing to
comply with the subpoena. Cooke Robotham sub-contracted with Dentons “on the representation
of the Government of Sudan on [its] debt restructuring strategy.” Id. at 6. Cooke Robotham’s
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status as a sub-contractor does not necessarily eliminate attorney-client privilege; to the extent that
Cooke Robotham and Dentons worked collectively as Sudan’s legal advisors, communications
and documents confidentially shared between the three entities would not lose their privileged
status. Cf. FTC v. GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (concluding that the
attorney-client privilege extended to third parties that worked with a law firm as part of an
intertwined team). But it is implausible that all of the documents in Cooke’s possession fall under
attorney-client privilege. Even if some of the documents concern legal matters discussed with Mr.
Laryea in his professional capacity, documents and communications concerning billing would
generally not fall under the privilege. See United States v. Naegele, 468 F. Supp. 2d 165, 171
(D.D.C. 2007). Cooke’s blanket claim of privilege fails to differentiate between categories and
thus provides no basis for denying plaintiffs’ motion to compel the production of at least some of
the “over 1,000 potentially responsive documents.” June 28 Letter at 2; see Fed. R. Civ. P.
45(e)(2)(A) (“A person withholding subpoenaed information under a claim that it is privileged . . .
must . . . describe the nature of the withheld documents, communications, or tangible things in a
manner that, without revealing information itself privileged or protected, will enable parties to
assess the claim.”).
The firm also claims that “any pertinent documents regarding any of [Cooke Robotham’s]
former clients enjoy the continuing confidentiality as outlined by DC Bar Rules 1.6.” Cooke Decl.
¶ 4. Rule 1.6 provides that a lawyer of the D.C. Bar shall not knowingly “reveal a confidence or
secret of the lawyer’s client.” D.C. Bar Rule of Prof’l Conduct 1.6(a)(1). But the Rule goes on to
permit such disclosures “when permitted by these Rules or required by law or court order.” Id.
1.6(e)(2)(A). Rule 1.6 therefore does not bar Cooke from complying with the instant subpoena,
but instead specifically permits the firm to do so.
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Finally, Cooke protests that several of plaintiffs’ requests are improper insofar as they
“pertain to matters outside the Jurisdiction of this Court.” Cooke’s Resp. ¶¶ 3, 6–7. These requests
are for documents related to Sudan’s commercial activities with persons located outside the United
States and to Sudan’s financial accounts and properties “anywhere in the world.” Subpoena at 14.
Rule 45 does impose some geographic limits on the Court’s power to issue subpoenas, but such
limitations concern the location of the subpoenaed individual, not the subject matter of the
requested documents. See Fed. R. Civ. P. 45(c)(2) (“A subpoena may command . . . production
of documents . . . at a place within 100 miles of where the [targeted] person resides, is employed,
or regularly transacts business in person.”). Cooke does not contest that this Court has jurisdiction
over the present dispute, and it provides no support for the claim that documents about foreign
persons, accounts, or property cannot be subpoenaed. Indeed, in a related matter, this Court has
already concluded that “[d]istrict courts may order discovery related to assets abroad, even though
plaintiffs may have to seek execution on those assets from a foreign court.” Amduso, 288 F. Supp.
3d at 97. The Court comes to the same conclusion today.
CONCLUSION
For these reasons, plaintiffs’ motion to compel will be granted. A separate order has been
issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: December 11, 2019
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