Palantir Technologies Inc.
Filing
24
ORDER ON APPLICATION FOR ORDER TO OBTAIN DISCOVERY PURSUANT TO 28 U.S.C. § 1782(Dkt. # 1 ) by Magistrate Judge N. Reid Neureiter on 30 June 2022. Palantir's request under 28 U.S.C. § 1782 to obtain a deposition of Mr. Abramowitz and su bpoena documents from his American counsel is improper because it seeks attorney-client privileged information and attorney work product. Mr. Abramowitz's the attorney-client privilege has not been waived with respect to this information. I have also reviewed in camera the disputed documents anddo not find any basis to find that the crime-fraud exception to the attorney-client privilege would apply. Because the application seeks attorney-client privileged information as to which no exception applies, granting the application would violate 28 U.S.C. § 1782 and constitute an undue burden under the discretionary factors listed by the Supreme Court. Therefore, Petitioner Palantirs application is DENIED.(cmadr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 22-mc-00062-PAB
In re Application of PALANTIR TECHNOLOGIES INC.
for an Order Pursuant to 28 U.S.C. § 1782 to Obtain
Discovery for Use in Foreign Proceedings.
ORDER ON
APPLICATION FOR ORDER TO OBTAIN DISCOVERY
PURSUANT TO 28 U.S.C. § 1782
(Dkt. #1)
N. REID NEUREITER
United States Magistrate Judge
INTRODUCTION
This matter comes before the Court on Palantir Technologies, Inc.’s (“Palantir”)
Application and Petition for an Order Pursuant to 28 U.S.C. § 1782 to Obtain Discovery
for Use in Foreign Proceedings (the “Application”). Dkt. #1. Specifically, Palantir seeks
permission under 28 U.S.C. § 1782 to take the deposition of Marc L. Abramowitz (“Mr.
Abramowitz”) and to issue a subpoena for attorney-client privileged (and work product)
documents from Mr. Abramowitz and his counsel going back nearly six years,
purportedly for use in criminal and civil proceedings taking place in Germany. The
matter was assigned to Judge Brimmer, who then referred the Application to me. See
Dkt. #9. I heard argument by the Parties on the issues raised by Palantir’s Application
on May 25, 2022. At the hearing I directed Mr. Abramowitz’s counsel to submit two of
the disputed and arguably privileged documents for in camera review.
Now, being fully informed and for the reasons set forth below, the Court, in the
exercise of its discretion, ORDERS that the application is DENIED.
Applications under 28 U.S.C. § 1782
Section 1782(a) of Title 28 of the United States Code provides, in pertinent part,
that the “district court of the district in which a person resides or is found may order him
to give his testimony or statement or to produce a document or other thing for use in a
proceeding in a foreign or international tribunal, including criminal investigations
conducted before formal accusation.” The threshold statutory requirements of § 1782(a)
are met when “(1) the person from whom discovery is sought resides (or is found) in the
district of the district court to which the application is made, (2) the discovery is for use
in a foreign proceeding before a tribunal, and (3) the application is made by a foreign or
international tribunal or any interested person.” Schmitz v. Bernstein Liebhard & Lifshitz
LLP, 376 F.3d 79, 83 (2d Cir. 2004) (ellipses and internal quotation marks omitted).
Meeting the statutory prerequisites, however, is not the end of the inquiry. The
Court retains discretion over whether to permit the requested discovery. See Intel Corp.
v. Advanced Micro Devices, Inc., 542 U.S. 241, 260 (2004).
FACTUAL BACKGROUND
The factual background of Palantir’s application is convoluted, to say the least.
Palantir and Mr. Abramowitz have been involved in multiple lawsuits in various venues
across the country and the world. This application is an offshoot of one of those
lawsuits—a German proceeding where Palantir seeks to challenge Mr. Abramowitz’s
German patent applications.
Palantir is a public American software company that specializes in “big data”
analytics. It is based in Denver, Colorado. Mr. Abramowitz, an Aspen, Colorado
resident, was one of Palantir’s first outside investors. The relationship between Palantir
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and Mr. Abramowitz soured in 2015, after Mr. Abramowitz had filed provisional United
States patent applications in late 2014. Palantir accused Mr. Abramowitz of stealing
Palantir’s ideas and using them to file his patent applications.
In September 2016, Palantir filed an interference proceeding with the United
States Patent and Trademark Office. The company also filed a misappropriation lawsuit
in California against Mr. Abramowitz. In that suit, Palantir alleges that Mr. Abramowitz’s
patent applications were based on Palantir’s trade secrets. Specifically, Palantir claims
that during a June 10, 2014, meeting, Palantir executive Shyam Sankar (“Mr. Sankar”)
disclosed the details of Palantir’s cybersecurity and cyber insurance trade secrets to Mr.
Abramowitz. As described in more detail below, that meeting, and whether Mr.
Abramowitz remembers any of it, are at the heart of Palantir’s current application.
In addition to the lawsuits stemming from Mr. Abramowitz’s patent applications,
Palantir and Mr. Abramowitz were (or are) involved in two cases in Delaware. First, Mr.
Abramowitz sued to vindicate his right as an investor to obtain information about the
company under Delaware’s books and records statute. Next, Mr. Abramowitz brought a
second Delaware lawsuit to seek recompense for alleged interference by Palantir in the
sale of Mr. Abramowitz’s stock to a third party. This second Delaware lawsuit between
Mr. Abramowitz and Palantir is set to go to trial in July of this year.
In September 2018, after two years of litigation in California, Palantir filed a
patent-entitlement action against Mr. Abramowitz in Germany. In that German action,
Palantir seeks a declaration that Mr. Abramowitz’s foreign patent applications were
based on Palantir’s ideas. Just as in the California case, Palantir’s complaint in the
German suit asserts that Mr. Abramowitz’s cyber insurance ideas were obtained and
3
derived from the June 10, 2014 meeting with Mr. Sankar. As Palantir asserts in its
pending application for discovery: “While Abramowitz’s [German patent] applications
claim that he is responsible for the technological innovation underlying the Cyber
Patents, the patents are based on proprietary information that Abramowitz stole from
Palantir.” Dkt. #1 at 6.
Disputed Recollections about the June 2014 Meeting Perplex the German
Court
Mr. Abramowitz has already been deposed in these various litigations, including
specifically about the June 2014 meeting with Mr. Sankar. For example, in May 2017
deposition testimony in the Delaware books and records case, Mr. Abramowitz said that
he remembered meeting Mr. Sankar once “to say hello,” but did not know why they had
been introduced. Dkt. #1-15 at 4. Palantir again deposed Mr. Abramowitz in one of the
U.S. cases in October 2020, while the German case was pending. During that
deposition, Mr. Abramowitz repeated essentially the same testimony: he remembered
“meeting Shyam once standing in the doorway of his office saying hello.” Dkt. #1-15 at
5. With respect to the whether a supposed “meeting” occurred, or what was discussed,
Mr. Abramowitz, testified that he had “no recollection.” Id.
But problems arose with Mr. Abramowitz’s submissions to the German court.
Palantir in its complaint and briefs alleged with great specificity what happened at the
June 2014 meeting between Mr. Abramowitz and Mr. Sankar. In his response to these
specific allegations, Mr. Abramowitz, in pleadings drafted in German by his German
counsel, appears to have denied them to a level of detail that caused confusion, at least
in the mind of the German court. The German pleading denials were so specific as to
4
suggest that Mr. Abramowitz actually remembered the conversation, including its length,
and “what it was or was not about.” Dkt. #1-13 at 2.
And indeed, this was the German court’s conclusion. In the German court’s view,
Mr. Abramowitz’s pleadings “expressly rul[ed] out the communication of certain details
by Mr. Sankar to the Defendant in the course of the conversation.” Id. In other words,
per the German court’s impression, the pleadings submitted by Mr. Abramowitz’s
German counsel conveyed the impression that Mr. Abramowitz in fact had an
affirmative recollection of the alleged conversation and could affirmatively relate that he
specifically remembered that no technical details were provided. By contrast, his
testimony in the American proceedings stated merely that Mr. Abramowitz did not
remember the conversation.
On July 29, 2021, the German Court issued an order that it would be set an
evidentiary hearing, during which the court expected to question Mr. Abramowitz
regarding his recollection of the June 2014 conversation between Mr. Sankar and Mr.
Abramowitz. Id.
On October 21, 2021, the German court held the anticipated hearing. Mr.
Abramowitz was present. In the meantime, the German court had been provided by
Palantir with a copy of Mr. Abramowitz’s American deposition testimony where he had
testified that he did not remember the meeting of June 10, 2014. Perplexed by Mr.
Abramowitz’s seeming affirmative recollection of the meeting in his German pleadings
but his denial of any recollection about the meeting in his American deposition
testimony, the German court found that the parties’ respective submissions were
irreconcilable. Further, the court warned that because Mr. Abramowitz was not
5
domiciled in Germany (and presumably could flee the jurisdiction), measures might
have to be taken to keep him from absconding if his testimony were found to be false:
The Chamber points out that, according to the order to take evidence,
irreconcilable statements by the parties are at issue and, on this basis,
suggests that the legal dispute be resolved in such a way that a taking of
evidence and thus possible false statements can be avoided. In this context,
the Chamber expresses its concern that neither the witnesses nor the
defendant to be heard as a party are domiciled in Germany and that,
therefore, in the event of a criminal offence being committed in Germany such as an offence of giving evidence or an attempted trial fraud - there is
a risk of absconding and that the Chamber is prepared to initiate the
necessary measures in the event of any suspicious facts.
Dkt. #1-9 at 4, Courtroom Minutes of October 21, 2021 Hearing.
After a short interruption, during which time Mr. Abramowitz’s German counsel
spoke with Mr. Abramowitz, Mr. Abramowitz’s German counsel returned to explain to
the German court that he had learned “in the last few days” that Mr. Abramowitz, in fact,
“could not remember the conversation of 10 June 2014 and therefore would not be able
to make any statement as to the content of the conversation.” Dkt. #1-13 at 3. This
came as a surprise to the German court.
The German court’s inquiry then turned to the question of how the German
pleadings (which arguably suggested an affirmative recollection by Mr. Abramowitz) had
been prepared. Mr. Abramowitz’s German counsel answered questions from the
German court about whether Mr. Abramowitz had been aware of the German pleadings
and whether his American lawyers had approved them:
In response to a question from the court, [Mr. Abramowitz’s German lawyer]
stated that Mr. Abramowitz had been informed by his US lawyers of the
pleadings submitted in these proceedings. The pleadings had been
forwarded to the US lawyers before being filed with the court. Before the
pleadings were submitted to the court, the US lawyers then issued their
approval for them to be submitted. The defendants’ representatives
6
themselves, however, had no concrete knowledge of whether Mr.
Abramowitz had also read the pleadings.
[Mr. Abramowitz’s] representative further states that even if Mr. Abramowitz
does not remember the content of the conversation of 10 June 2014, he is
certain that he did not receive any concrete technical information on the
subject matter of the application from the plaintiff’s side at any time until the
filing of the applications at issue.
Dkt. #1-9 at 4.
The German court then called Mr. Abramowitz to testify regarding the genesis of
the earlier submissions in the German proceeding. Although here is no word-for-word
transcript of the testimony, the courtroom minutes reflect that Mr. Abramowitz answered
questions as follows:
I have read the translations of the pleadings that my attorneys have filed in
this litigation. I have not, however, studied them. First, I had the pleadings
in German and then the translations. I only read the translations. It was
difficult for me to follow the translations.
My US lawyers have asked me to approve the pleadings as being correct.
After consultation with my U.S. attorneys, I have approved the pleadings as
being correct. The US lawyers consulted with the German lawyers on the
content of the pleadings. I relied on my US lawyers, as they know the facts.
Telephone and video conferences have taken place in which I, my US
lawyers and also the German lawyers have participated. One of the
purposes of the conferences was to confirm the accuracy of the contents of
the pleadings. I do not specifically recall the passages of the pleadings in
which I was personally offered as a party to be heard to substantiate certain
facts and procedures. I’m not surprised, though.
Id. at 5.
So, from the German court’s perspective, it appeared Mr. Abramowitz had
affirmatively represented in German pleadings a recollection of the June 10, 2014
meeting, while in American proceedings, he denied any recollection. And then, when
Mr. Abramowitz prepared to testify in German court, he again denied any recollection.
7
Based on this series of events, along with Mr. Abramowitz’s admissions that he had
reviewed the German pleadings prior to their filing in conjunction with his American
lawyers, coupled with his German lawyer’s statement that he had only learned a few
days before of Mr. Abramowitz’s claimed lack of recollection, the German court
concluded that Mr. Abramowitz had tried to mislead the German court and had engaged
in “attempted litigation fraud.” After considering the matter post hearing, the German
court submitted a criminal complaint to the Munich Public Prosecutor’s Office for further
action on December 15, 2021. See Dkt. #1-13, Order of December 15, 2021 issuing
Criminal Complaint. A criminal investigation into Mr. Abramowitz’s alleged litigation
fraud was opened.
German law provides that if a defendant is found to have committed attempted
litigation fraud intentionally in a “particularly serious case” (meaning aggravating
circumstances), the result could be a prison sentence of six months to ten years. Dkt.
#1-16 at 3, ¶ 8.
Palantir’s Criminal Complaint against Mr. Abramowitz and his American
Attorneys
On November 2, 2021, before the German court had issued its criminal
complaint, Palantir filed its own criminal complaint against Mr. Abramowitz and his
American lawyers, Barry Simon and Stephen L. Wohlgemuth of Williams & Connolly
(the “W&C Lawyers”). Dkt. #1-16 at 2, ¶ 5. Palantir’s criminal complaint was also filed
with the Munich Public Prosecutor’s Office for attempted litigation fraud in a particularly
serious case and for aiding and abetting attempted litigation fraud in a particularly
serious case. In response to Palantir’s criminal complaint, the Public Prosecutor opened
a criminal investigation in November 2021. Id. at 3, ¶ 7.
8
Palantir’s criminal complaint foreshadowed the German court’s complaint by
alleging that Mr. Abramowitz committed attempted litigation fraud by knowingly and
willfully lying during a proceeding before the German court to influence the outcome of
the litigation in his favor. The allegation, again, is that in the American deposition, Mr.
Abramowitz swore that he did not have any recollection at all of a June 2014 meeting
(neither with regard to its content, nor whether the meeting took place). Palantir argues
that this is a direct contradiction to Mr. Abramowitz’s statements before the German
court in which he claimed that he had recollections of the June 10, 2014 meeting and
could dispute and precisely state what had and had (allegedly) not happened in that
meeting. Id. at 4, ¶ 9.
Palantir’s purported basis for initiating a criminal complaint against Mr.
Abramowitz’s W&C Lawyers is that they had been appointed “special correspondence
counsel” for the German patent litigation and were closely involved in the preparation of
the pleadings in the German patent litigation. The W&C Lawyers’ participation in the
filing of a “contradictory pleading in Germany only one week after Mr. Abramowitz’s
deposition,” in Palantir’s view, “supports Palantir’s allegation that [the W&C Lawyers]
participated as accomplices in the attempted litigation fraud.” Id. at 4–5, ¶ 10. Further,
because the W&C Lawyers participated in Mr. Abramowitz’s deposition in the United
States, Palantir argues they must have known, from the deposition and the transcript,
that Mr. Abramowitz had made (allegedly) contradictory statements about the same
meeting in the two jurisdictions. Id.
9
Mr. Abramowitz’s German Counsel Falls on His Sword
Important to the German court’s referral to the Munich Public Prosecutor was Mr.
Abramowitz’s German counsel’s statement that he had learned about Mr. Abramowitz’s
claimed lack of recollection of the June 2014 meeting, only a few days before the
October 21, 2021 German evidentiary hearing. This revelation supported the German
court’s conclusion that Mr. Abramowitz had misled his own German counsel into filing
false pleadings.
But Mr. Abramowitz’s German counsel has now admitted to making a mistake. In
a “Personal Statement” contained in a brief filed with the German court on March 28,
2022, Mr. Abramowitz’s German counsel conceded that he had been informed by Mr.
Abramowitz’s the W&C Lawyers in writing on October 7, 2019, that Mr. Abramowitz
“had already testified to having no recollection of the meeting on 10 June 2014.” Dkt.
#1-15 at 3. German counsel further explained that this was “repeated in writing on 3
October 2020, a few days before the Quadruplica [a form of brief] was filed. Thus, this
fact was known to [German counsel] at the time and there was no information to the
contrary at any time from the [W&C Lawyers] or [Mr. Abramowitz].” Id. So, German
counsel clarified to the German court that his representation at the October 21, 2021
hearing, that he had only learned “in the last few days before the hearing” about
Mr. Abramowitz’s lack of recollection, was “unintentionally incorrect.” Id.
As to the propriety of the written German pleadings where Mr. Abramowitz
denied specific allegations of receiving detailed technical information at the June 2014
meeting with Mr. Sankar, Mr. Abramowitz’s German counsel nevertheless maintains
that the written submissions were “procedurally admissible and appropriate.” Id. This is
10
because Mr. Abramowitz’s denial that he received detailed information about the
conception of the disputed invention during the June 2014 meeting is not necessarily
inconsistent with a lack of recollection of the meeting. After all, other independent
evidence could form the basis of a denial found in a pleading, notwithstanding the lack
of a party’s recollection. Mr. Abramowitz’s German counsel did express regret for
creating the any misimpression: “Inasmuch as the Chamber has gained the impression
that our submission implied a recollection of the further circumstances of the meeting,
we regret that such an impression has been created.” Dkt. #1-15 at 3.
The day after filing his Personal Statement, Mr. Abramowitz’s German counsel
informed the German court he was no longer representing Mr. Abramowitz in the
German patent proceedings and new counsel announced her representation. Dkt. #1-2
at 10, ¶ 31, Decl. of Wolrad Prinz Zu Waldeck Und Pyrmont.
Palantir Seeks Privileged Communications and Work Product
In aid of the ongoing criminal investigations in Germany, Palantir now seeks to
take another deposition of Mr. Abramowitz regarding his recollection (or lack thereof) of
the June 2014 meeting as well as his review and approval of the German pleadings.
Palantir also asks for discovery from the files of the W&C Lawyers, seeking attorneyclient privileged documents going back nearly six years. The subject of the proposed
discovery is what Palantir calls the “core topic” of the German criminal proceedings:
“Abramowitz’s review and approval of filings made to the German Court concerning the
June 10[, 2014] Meeting, and his preparation for the Evidentiary Hearing.” Dkt. #1 at 14.
In conjunction with a deposition of Mr. Abramowitz, the proposed subpoena seeks the
following categories of documents:
11
1.
All Documents and Communications concerning the June 10
Meeting exchanged between Abramowitz and Williams & Connolly and
between Abramowitz and Hoffmann Eitle [Mr. Abramowitz’s German
counsel], from June 10, 2014 to the present.
2.
All
Documents
and
Communications
concerning
Abramowitz’s recollection of the June 10 Meeting, from June 10, 2014 to
the present.
3.
All
Documents
and
Communications
concerning
Abramowitz’s preparation to provide testimony in connection with the
German Patent Litigation or in the Delaware Deposition concerning his
recollection of the June 10 Meeting.
4.
All drafts of the Relevant
Abramowitz.
Paragraphs reviewed by
5.
All Documents and Communications concerning the Relevant
Paragraphs exchanged between Abramowitz and Williams & Connolly and
between Abramowitz and Hoffmann Eitle, including, without limitation, all
drafts of the Relevant Paragraphs reviewed by Williams & Connolly,
Hoffmann Eitle, or Abramowitz, including, without limitation, any markups or
revisions thereof prepared by Williams & Connolly, Hoffmann Eitle, or
Abramowitz.
6.
All Documents supporting, underlying, or relating to
Abramowitz’s statements about the June 10 Meeting in the Relevant
Paragraphs and in the Oral Statements, from June 10, 2014 to the present.
7.
All Documents evidencing, supporting, or concerning
Abramowitz’s Oral
Statement during the German Patent Litigation: “I relied on my US
lawyers, as they know the facts.”
8.
All Communications referenced in paragraph 4 of
Abramowitz’s Mar. 28, 2022 Reply to Plaintiff’s Brief, and all Documents
evidencing, supporting, or relating to the statements in paragraph 4 of
Abramowitz’s Mar. 28, 2022 Reply to Plaintiff’s Brief.
Dkt. #1-23 at 4–8, Proposed Subpoena.
Palantir concedes that the proposed subpoena calls for the production of
attorney-client privileged material. It also obviously calls for the production of attorney
12
work product. See Dkt. #1 at 21 (implicitly recognizing that “the requested discovery
incudes information and documents that would ordinarily be protected by privilege”).
Palantir makes two main arguments for compelling production of what would
otherwise be privileged materials. Initially, Palantir asserts that Mr. Abramowitz has
waived attorney-client and work product privilege as to his communications with his
attorneys about the June 2014 meeting under the “sword-shield” or “advice-of-counsel”
doctrine. Palantir argues that this happened at least three times. First, waiver allegedly
occurred when, in response direct questions from the German court, Mr. Abramowitz
stated, “after consultation with my U.S. attorneys, I have approved the [German]
pleadings as being correct. The US lawyers consulted with the German lawyers on the
content of the pleadings. I relied on my US lawyers, as they know the facts.” Id. at 22
(emphasis in original) (citing Dkt. #1-9 at 4).
Second, Palantir argues that there was some kind of waiver when
Mr. Abramowitz, in the pending Delaware action, filed a motion in limine seeking to
exclude from the Delaware trial any reference to the German patent litigation,
suggesting, in part that any mistakes in his German filings were the result of faulty
translations of the draft German proceedings.
And third, Palantir claims that the brief including Mr. Abramowitz’s German
counsel’s Personal Statement waives the privilege because this “submission references
supposed written communications between Mr. Abramowitz’s U.S. and German
attorneys to defend Mr. Abramowitz’s inconsistent statements, but it does not attach
these communications or directly cite from them; it also asserts that ‘there was no
information to the contrary at any time from the [W&C Lawyers] or [Mr. Abramowitz].’”
13
Dkt. #1 at 22. Palantir argues that neither Palantir nor the German Court can evaluate
Mr. Abramowitz’s arguments without reviewing the referenced alleged communications
and draft filings, as well as other communications among Mr. Abramowitz and his
counsel on the subject. Id. at 22–23.
Beyond waiver, Palantir argues that the crime-fraud exception applies because
the communications that Palantir seeks to discover between Mr. Abramowitz and his
counsel were made in furtherance of a crime or fraud. Id. at 24. Citing the Tenth
Circuit’s decision in In re Grand Jury Subpoenas, 144 F.3d 653 (10th Cir. 1988),
Palantir argues that it has put forth prima facie evidence of W&C Lawyers’ participation
in a crime or a fraud because the German court has already issued an order concluding
that Mr. Abramowitz “attempted litigation fraud” to “induce the Chamber to make a
decision in his favor (dismissal of the action) by authorizing his attorneys to submit
briefs in which he claimed to have a recollection of the June 10[, 2014] meeting, despite
testifying under oath in the Delaware action that he had no recollection of the meeting.”
Dkt. #1 at 15. Palantir argues that there can be no doubt as to the role of the W&C
Lawyers in the alleged misconduct because Mr. Abramowitz himself “testified that he
relied on [the W&C Lawyers] to prepare the offending submissions and to confirm the
accuracy of the facts contained therein.” Id. at 25.
Palantir does not rest exclusively on the German court’s conclusions. Instead, it
“invites [this] Court to make its own determination after reviewing evidence of
Abramowitz’s conflicting statements and reach a prima facie determination.” Dkt. #1 at
25. I accept this invitation.
14
LEGAL STANDARDS
Protection of Privileged Documents
Even if all the statutory requirements are met, whether to permit discovery under
28 U.S.C. § 1782 remains within the discretion of the Court. Intel Corp., 542 U.S. at
260; see also Dep’t of Caldas v. Diageo PLC, 925 F.3d 1218 (11th Cir. 2019) (“When
these statutory requirements are satisfied, a district court is authorized—but not
required—to provide judicial assistance to the applicant.”).
The Supreme Court has enumerated certain non-exclusive factors for a court to
consider when deciding whether to permit discovery pursuant to § 1782: (1) whether the
documents or testimony sought are within the foreign tribunal’s jurisdictional reach, and
thus accessible absent § 1782 aid; (2) the nature of the foreign tribunal, the character of
the proceedings underway abroad, and the receptivity of the foreign government or the
court or agency abroad to U.S. federal court judicial assistance; (3) whether the
discovery request conceals an attempt to circumvent foreign proof-gathering restrictions
or other policies of a foreign country or the United States; and (4) whether the request is
unduly intrusive or burdensome. Intel, 542 U.S. at 264–65.
Discovery requests under § 1782 are evaluated in light of the “twin aims” of the
statute”: (1) “providing efficient means of assistance to participants in international
litigation in our federal courts” and (2) “encouraging foreign countries by example to
provide similar means of assistance to our courts.” In re Application of Michael Wilson &
Partners, Ltd., No. 06–cv–02575–MSK– PAC (MEH), 2007 WL 2221438, at *3 (D. Colo.
July 27, 2007) (quoting In re Application of Malev Hungarian Airlines, 964 F.2d 97, 100
(2d Cir. 1992)).
15
But a critical underlying point is that the discovery available under § 1782 should
not exceed that which would be normally available under the Federal Rules of Civil
Procedure. See 28 U.S.C. § 1782(a) (noting that the “testimony or statement shall be
taken, and the document or other thing produced, in accordance with the Federal Rules
of Civil Procedure”). Thus, even assuming that the statutory requirements are met and
certain of the discretionary factors listed by the Supreme Court in Intel would militate in
favor of allowing discovery, discovery should not be permitted under § 1782 if the
requested discovery would not normally be available under the Federal Rules of Civil
Procedure in an American proceeding. See Heraeus Kulzer, GMBH v. Biomet, Inc., 633
F.3d 591, 595 (7th Cir. 2011) (“As indicated in one of the passages we quoted from the
statute, discovery sought under section 1782 must (in the absence of a contrary order
by the district court) comply with Rule 26 and the other rules governing discovery in
federal courts.”). In this respect, the final Intel discretionary factors of undue
intrusiveness or undue burden overlap to some degree with the limits on discovery
imposed by the Rules. See, e.g., Fed. R. Civ. P. 26 (b)(1) (discovery must be
proportional to the need of the case, considering, among other things, the importance of
the issues at stake in the action, the amount in controversy, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs the likely benefit); Fed. R. Civ. P. 26 (c)(1) (party may move for
protective order to protect a party from annoyance, embarrassment, oppression, or
undue burden or expense); Fed. R. Civ. P. 45(d)(3)(A)(iii) and (iv) (directing court to
quash or modify subpoena if it requires disclosure of privileged or other protected
matter, if no exception or waiver applies; or subjects a person to undue burden).
16
Importantly, the statute itself is emphatic that it is not to be used to compel
testimony or procure evidence that would infringe or violate any privilege: “A person
may not be compelled to give his testimony or statement or to produce a document or
other thing in violation of any legally applicable privilege.” 28 U.S.C. §1782(a); see also
Baumer v. Schmidt, 423 F. Supp. 3d 393, 398 (E.D. Mich. 2019) (noting that “[a]ny and
all . . . limitations upon discovery that would be available under Fed. R. Civ. P. 26
(particularly subparagraphs (b) and (c)), pertaining both to privileged and trial
preparation matters and to protective orders, are also available under section 1782(a)”
(quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 n.4 (2d Cir. 1995)));
In re Microsoft Corp., 428 F. Supp. 2d 188, 196 (S.D.N.Y. 2006) (explaining that a
discovery request under § 1782 could be deemed unduly intrusive and burdensome
where it seeks documents that are privileged under U.S. law, including work product
privilege).
The Crime-Fraud Exception
“It is the purpose of the crime-fraud exception to the attorney-client privilege to
assure that the ‘seal of secrecy,’ between lawyer and client does not extend to
communications ‘made for the purpose of getting advice for the commission of a fraud’
or crime.” United States v. Zolin, 491 U.S. 554, 563 (1989) (internal citations omitted).
The crime-fraud exception applies to both the attorney-client privilege and the workproduct doctrine. In re Vargas, 723 F.2d 1461, 1467 (10th Cir. 1983).
To invoke the crime-fraud exception, the party opposing the privilege must
present prima facie evidence that the allegation of attorney participation in the crime or
fraud has “some foundation in fact.” In re Grand Jury Subpoenas, 144 F.3d at 660;
17
Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995). The evidence must
show that the client was engaged in or was planning the criminal or fraudulent conduct
when it sought the assistance of counsel, and that the assistance was obtained in
furtherance of the conduct or was closely related to it. In re Grand Jury Subpoenas, 144
F.3d at 660. The exception applies if the assistance was used to cover up and
perpetuate the crime or fraud. Id.; see also In re Grand Jury Proceedings (Company X),
857 F.2d 710, 712 (10th Cir. 1988); In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir.
1995) (noting that exception applies where “communication with counsel or attorney
work product was intended in some way to facilitate or to conceal the criminal activity”).
The Tenth Circuit has noted that the exact quantum of proof necessary to meet
the prima facie standard has not been decided by the Supreme Court. In re Grand Jury
Subpoenas, 144 F.3d at 660 (citing Zolin, 491 U.S. at 563–64 n.7). But as the Tenth
Circuit also explained, several circuits have attempted to define precisely what the
standard requires and established varying tests. Id. (citing In re Richard Roe, Inc., 68
F.3d at 40 (probable cause to believe a crime or fraud has been committed); Haines v.
Liggett Group Inc., 975 F.2d 81, 95–96 (3d Cir. 1992) (evidence that if believed by the
fact finder would be sufficient to support a finding that the elements of the crime-fraud
exception were met); In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1242
(5th Cir. 1982) (evidence such as will suffice until contradicted and overcome by other
evidence); United States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993) (evidence presented
by the party seeking application of the exception is sufficient to require the party
asserting the privilege to come forward with its own evidence to support the privilege);
In re Grand Jury Proceedings (Appeal of Corporation), 87 F.3d 377, 381 (9th Cir. 1996)
18
(reasonable cause to believe attorney was used in furtherance of ongoing scheme); In
re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987)
(evidence that if believed by the trier of fact would establish the elements of some
violation that was ongoing or about to be committed); In re Sealed Case, 107 F.3d 46,
50 (D.C. Cir. 1997) (evidence that if believed by the trier of fact would establish the
elements of an ongoing or imminent crime or fraud)). Interpreting Kansas law, a sister
federal district court in the Tenth Circuit defined a prima facie case sufficient to justify
application of the crime-fraud exception as: “evidence which, if left unexplained or
uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in
favor of the plaintiff on the issue it supports.” Berroth v. Kan. Farm Bureau Mut. Ins. Co.,
Inc., 205 F.R.D. 586, 589 (D. Kan. 2002).
Even if there is an arguable prima facie showing that the crime-fraud exception
might apply, the district court is entitled to conduct an in camera review to determine the
applicability of the crime fraud exception. Motley, 71 F.3d at 1551–52 (citing Zolin, 491
U.S. at 575–76 (1989)). Whether to conduct an in camera review is left to the sound
discretion of the district court. Id. And, a court nevertheless is required to conduct an in
camera review if there is a possibility that some portion of a requested document may
fall outside the scope of the exception to the privilege. In re Vargas, 723 F.2d at 1467.
Waiver of the Attorney-Client Privilege
The importance and sanctity of the attorney-client privilege is well established. In
re Grand Jury Subpoenas, 144 F.3d at 659–60. Generally, communications between a
lawyer and the lawyer’s client for the purpose of obtaining legal advice is a privileged
communication which is protected by the legal process. See Upjohn Co. v. United
19
States, 449 U.S. 383, 389 (1981); Fed. R. Civ. P. 26(b)(1) (limiting discovery to any
matter “not privileged”). But the attorney-client privilege is not an absolute privilege and
may be waived by the client. “Any waiver must be demonstrated by evidence that the
client, by words or conduct, has expressly or impliedly forsaken his or her claim of
confidentiality with respect to the information in question and, thus, has consented to its
disclosure.” Am. Economy Ins. Co. v. Schoolcraft, No. 05-cv-01870-LTB-BNB, 2007 WL
1229308, at *3 (D. Colo. 2007) (quoting People v. Sickich, 935 P.2d 70, 73 (Colo. App.
1996)).
As explained by the Tenth Circuit in Frontier Refining, Inc. v. Gorman-Rupp Co.,
Inc., 136 F.3d 695 (10th Cir. 1998), to determine whether a privilege has been impliedly
waived, courts generally employ some version of one of the three following approaches:
The first of these general approaches is the “automatic waiver” rule, which
provides that a litigant automatically waives the privilege upon assertion of
a claim, counterclaim, or affirmative defense that raises as an issue a matter
to which otherwise privileged material is relevant. See Independent Prods.
Corp. v. Loew’s Inc., 22 F.R.D. 266, 276–77 (S.D.N.Y. 1958) (originating
“automatic waiver” rule); see also FDIC v. Wise, 139 F.R.D. 168, 170–71
(D. Colo. 1991) (discussing Independent Productions and “automatic
waiver” rule). The second set of generalized approaches provides that the
privilege is waived only when the material to be discovered is both relevant
to the issues raised in the case and either vital or necessary to the opposing
party’s defense of the case. See Black Panther Party v. Smith, 661 F.2d
1243, 1266–68 (D.C. Cir.1981) (balancing need for discovery with
importance of privilege), vacated without opinion, 458 U.S. 1118, 102 S. Ct.
3505, 73 L. Ed. 2d 1381 (1982); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.
Wash. 1975) (setting forth three-factor test, which includes relevance and
vitality prongs). Finally, several courts have recently concluded that a litigant
waives the attorney-client privilege if, and only if, the litigant directly puts the
attorney’s advice at issue in the litigation. See, e.g., Rhone–Poulenc Rorer
Inc. v. Home Indem. Co, 32 F.3d 851, 863–64 (3d Cir.1994) (adopting
restrictive test and criticizing more liberal views of waiver).
Id. at 699–700. In predicting what the Wyoming Supreme Court would do, the Tenth
Circuit rejected the “automatic waiver” rule as not adequately accounting for the
20
importance of the attorney-client privilege to the adversary system. Id. at 700–01.
Instead, the Tenth Circuit applied the “widely cited” test articulated in Hearn. Under the
Hearn test, each of the following three conditions must exist to find waiver of the
attorney-client privilege:
(1) assertion of the privilege was the result of some affirmative act, such as
filing suit, by the asserting party; (2) through this affirmative act, the
asserting party put the protected information at issue by making it relevant
to the case; and (3) application of the privilege would have denied the
opposing party access to information vital to [its] defense.
Id. at 701 (emphasis in original) (quoting Hearn, 68 F.R.D. at 581); see also Cardtoons,
L.C. v. Major League Baseball Players Assoc., 199 F.R.D. 677 (N.D. Okla. 2004) (citing
test articulated in Hearn); Seneca Ins. Co., Inc. v. Western Claims, Inc., 774 F.3d 1272,
1276 (10th Cir. 2014) (applying Hearn test to predict how the Oklahoma Supreme Court
would address “at-issue” waiver of the attorney-client privilege).
The “affirmative act” requirement is more than merely responding to a question
from the court or opposing counsel. Merely stating, in response to questions posed by
opposing counsel, that a lawyer participated in formulating a response or provided
advice regarding a certain course of action, does not constitute a waiver of the attorneyclient privilege. See Oil, Chem. & Atomic Workers International Union (OCAW) v.
Sinclair Oil Corp., 748 P.2d 283 (Wyo. 1987).
In a discussion regarding the attorney work product doctrine, the Frontier
Refining decision also addresses the “sword-shield” doctrine which may result in a
waiver of the privilege. A litigant cannot use a privilege such as the work product
doctrine “as both a sword and a shield by selectively using the privileged document to
21
prove a point but then invoking the privilege to prevent an opponent from challenging
the assertion.” 136 F.3d at 704.
ANALYSIS
The Crime-Fraud Exception Does Not Apply
I accept Palantir’s invitation to analyze Mr. Abramowitz’s submissions in the
German court for prima facie evidence that he and his lawyers committed criminal
conduct. I find there is none.
As evidence of Mr. Abramowitz’s specific denials about what happened at the
June 2014 meeting, and the supposed affirmative (allegedly criminal) representations of
his “recollection,” Palantir, through the declaration of Mr. Prinz Zu Waldeck Und
Pyrmont (at Dkt. #1-2 at 4), cites the following paragraphs from documents filed by
Mr. Abramowitz’s German counsel:1
Abramowitz’s Response to Complaint of 20 November 2019 (Dkt. #1-4),
paragraphs 136–137.
These paragraphs include the statement, “The unsubstantiated assertions in
section C.11.3 of the Complaint (page 20), i.e. that in this meeting Mr. Sankar also
1
The cited paragraphs are the only paragraphs that Palantir points to as being
the basis for a criminal attempt to mislead the German court. And, it must be noted, Mr.
Abramowitz’s submissions to the German court were both lengthy and dense. For
example, Mr. Abramowitz’s Response to Palantir’s German complaint (Dkt. #1-4) runs
44 pages and 159 single-spaced paragraphs of material translated into English from the
original German. The Rejoinder of 7 August 2020 (Dkt. #1-5), consists of 73 pages and
316 paragraphs of translated material. And the Quadruplica brief of October 6, 2020
(Dkt. #1-6) runs another 22 pages and 92 paragraphs of dense, translated material.
Thus, Mr. Abramowitz’s German counsel submitted at least 139 pages of material
consisting of 567 fact-intensive, legally complicated paragraphs, all of which had been
translated from the German for Mr. Abramowitz and his American lawyers to review. So,
when Mr. Abramowitz testified to the German court that he had “read” the pleadings, but
not “studied them,” and that “it was difficult [for him] to follow the translations,” the
statement rings true.
22
explained ‘all of the aspects later incorporated by Defendant into the Applications in
Suit’ which then are listed there below, are incorrect and are denied.” Dkt. #1-4 at 40
(emphasis in original).
As to this statement, I find that a mere denial of an adversary’s allegation is not
an affirmative statement of Mr. Abramowitz’s recollection of the meeting, especially
when there is an independent basis for denying an allegation (which, as set forth below,
there was in this case).
Abramowitz’s Rejoinder of 7 August 2020 (Dkt. #1-5), paragraphs 16,
133–134, and 270.
Paragraph 16 of this document reads in relevant part, “In any event, CyberMesh
could no longer be considered confidential information at the time of the conversation
between Mr. Sankar and Defendant on 10 June 2014, during which Plaintiff asserts to
have reported on this development, which Defendant denies.” Dkt. #1-5 at 8 (emphasis
in original).
This too, is another mere denial, rather than an affirmative representation of
recollection.
Paragraph 133 of the Rejoinder reads, “Defendant denies that details of the
Applications in Suit were communicated to him in this discussion.” Id. at 35 (emphasis in
original). Again, a mere denial is not an affirmative representation of a recollection.
Paragraph 134 of the Rejoinder does request that, in the event the German court
were to take evidence from Mr. Sankar about the “one-on-one meeting,” “out of
precaution,” Mr. Abramowitz also be heard “since both parties must be given an
equivalent opportunity to present their case.” Id. at 35. Nevertheless, this paragraph
makes no affirmative statement about Mr. Abramowitz’s recollection, but merely asks for
23
the opportunity to be heard, perhaps to testify about why, even the absence of a specific
recollection, it would have made no sense for Mr. Sankar to disclose company secrets
to Mr. Abramowitz, or why, if technical information actually had been communicated
during such a meeting, Mr. Abramowitz would have remembered it.
Paragraph 270 of the Rejoinder similarly makes no affirmative statements of
recollection: “Regarding Plaintiff’s alleged communication to Defendant, the
submissions lack sufficient substantiation to be commented on. Defendant denies that
the teachings of the Applications in Suit were communicated to him by Mr. Sankar.” Id.
at 64 (emphasis in original).
Quadruplica [form of brief] of 6 October 2020 (Dkt. #1-6), paragraphs 1–2,
12, 44, and 55–59.
Paragraph 1 of this document is just a more expansive denial of what allegedly
happened at the June 10, 2014 meeting:
Plaintiff’s new and clearly expanded submissions regarding its alleged
conception of the invention and regarding that which it claims to have
communicated in a conversation which lasted 90 minutes at the most to
Defendant, who it believes lacks sufficient technical skill, are not only late
filed but are also rejected on the merits. This allegation, which is not
supported by any written records, has become (increasingly) incredible, and
the only witness is not trustworthy as a result of previous transgressions
(which have been admitted by Plaintiff or resolved by settlement).
Dkt. #1-6 at 4. Again, there is no specific allegation of any affirmative recollection by Mr.
Abramowitz in this paragraph.
Neither does paragraph 2 make any affirmative representation, as opposed to a
general denial: “Even if there had been a communication by Plaintiff to Defendant
(which is not the case), Defendant was not bound by an obligation of confidentiality, and
therefore Plaintiff would have foregone all rights.” Dkt. #1-6 at 4.
24
Paragraph 44 of the Quadruplica, again, merely denies that the inventions were
communicated to Mr. Abramowitz:
Consequently, it is clear that [Palantir] at that time had not conceived the
inventions of the Applications in Suit, in particular not regarding the entire
subject matter. Accordingly, such invention can therefore not have been
communicated to [Mr. Abramowitz]. We continue to deny [Palantir]’s blanket
statements as to the contrary.
Dkt. #1-6 at 13.
Next, paragraph 55 of the Quadruplica says nothing about Abramowitz’s
recollection. Instead, it cites as a basis for denial a contemporaneous internal email
showing that the June 2014 conversation was about “business and corporate law
organization.” Dkt. #1-6 at 15.
Paragraphs 56 and 57 of the Quadruplica are the only paragraphs that arguably
make any affirmative representations of what Mr. Abramowitz remembered of the
meeting:
According to Defendant’s recollection in particular technical aspects were
not mentioned in the conversation and the term CyberMesh was not
mentioned.
Defendant is consistent in his recollection. Mr. Sankar’s recollection on the
other hand appears to become ever more “detailed” and “adapted” to suit
the needs of Plaintiff’s briefs as the proceedings advance, at least to the
extent this can be judged based on Plaintiff’s submissions.
Dkt. #1-6 at 15 (emphasis added).
Paragraph 58 is a multi-part, point-by-point denial of what information was
allegedly communicated by Mr. Sankar to Mr. Abramowitz at the June 10, 2014
meeting. Id. at 15–16. For example, in this paragraph, Mr. Abramowitz asserts that Mr.
Sankar “did not” “explain to [Mr. Abramowitz] the inefficiencies of the cyber security
market with regard to the difficulties in determining adequate insurance coverage” (id., ¶
25
58(a) (emphasis in original)); “explain the whole concept of the CyberMesh and how to
make money with it or how it was set up in detail” (id., ¶ 58(c)); or “explain how
information is shared in the CyberMesh, how confidentiality interests can also be taken
into account in the automated exchange of data and information, and what information
might be specifically affected by this” (id., ¶ 58(e)).
The final Quadruplica paragraph cited as evidence of criminal conduct by Mr.
Abramowitz and his lawyers, paragraph 59, is a denial that Mr. Abramowitz “eagerly
took notes or made detailed memos” during the June 2014 meeting. The paragraph
explains that this is denied because Mr. Abramowitz, “has no habit of taking notes
during conversations and no notes of this meeting exist.” Dkt. #1-6 at 17. A person can
have no recollection of a meeting and still truthfully say that he did not take notes at the
meeting because it is never his practice to take notes.
Pointing to Mr. Abramowitz’s American deposition testimony that he had no
recollection of the June 2014 meeting, and comparing it to the above-cited paragraphs,
Palantir asserts that “[t]his is a direct contradiction to Mr. Abramowitz’s statements in
the [German patent proceedings] in which he claimed that he had recollections of the
Meeting and could dispute and precisely state what had and had (allegedly) not
happened in that meeting.” Dkt. #1-2 at 4, ¶ 12.
I reject Palantir’s conclusion that the American deposition testimony and German
pleading statements are in “direct contradiction.” With the utmost respect to German
tribunal, I also reject its conclusion that there was criminal conduct or attempted fraud
on the court here. As I stated at oral argument, even before I had closely analyzed all
the submitted materials, I had serious doubts as to whether there is probable cause to
26
believe that criminal misconduct occurred. Having now reviewed the submissions in
detail, I have no doubt: there is not probable cause to believe that Mr. Abramowitz
conspired with his W&C Lawyers to deceive or mislead the German court. Nor can this
Court find any reason to apply the crime fraud exception under the less stringent tests
supplied by other courts. The reasons are as follows:
First, as I note above, a mere denial that something occurred at a meeting is not
an affirmative statement that the denier has a recollection of what did occur at the
meeting. This is especially so where there are independent reasons for denying what
occurred at the meeting. And a broader review of what was actually being presented to
the German court makes clear that Mr. Abramowitz’s German counsel’s written briefs
included the many reasons, independent from Mr. Abramowitz’s specific memory, why it
would have been implausible for Mr. Sankar to have communicated detailed proprietary
and confidential information during a relatively short meeting. For example, Mr.
Abramowitz’s German counsel cited the following as reasons why Mr. Sankar did not (or
could not have) provided the disputed confidential information to Mr. Abramowitz at the
June 2014 meeting:
Palantir had not conceived the invention of the Applications in Suit at the
time of the alleged meeting. Dkt. #1-6 at 13, ¶ 44.
It is implausible that there was comprehensive communication of all
aspects of the Applications in Suit in a single conversation in which only
two people participated and where there was no written documentation of
what was said. Id., ¶ 45.
It is implausible that Mr. Sankar could claim to remember exactly how he
communicated all the technical details in a short conversation six years
ago. Id., ¶ 46.
Unlike what is otherwise common in Patent entitlement actions, Palantir
does not claim that it gave Mr. Abramowitz any written documentation,
27
research reports, draft patent applications, or electronic files, or anything
palpable that might have disclosed its alleged inventions. Id. at 13–14, ¶
47.
Palantir claims that Mr. Abramowitz has no scientific or technical
background, but is only a businessman and an investor, yet
simultaneously claims that in a conversation that lasted at most 90
minutes, Mr. Sankar was able to convey “all aspects of its alleged
inventions to Mr. Abramowitz. Id. at 14, ¶¶ 50–51.
The disputed patent applications cover 123 pages, and their substance
could not be communicated in 90 minutes. Id., ¶ 53.
Mr. Sankar’s e-mails the day before the meeting and the evening after the
meeting did not provide any indication that technical questions were
discussed in “great detail” or “minutely,” but instead mention only real
estate and a subsidiary as items of discussion. Dkt. #1-15 at 6, ¶ 15.
Mr. Abramowitz does not have a habit of taking notes, no such notes have
been found on all of discovery, nor were any notes given to the patent
attorney who drafted the specifications of the disputed patents. Id.
In sum, the majority of the paragraphs cited by Palantir as evidence of supposed
criminal conduct are mere denials by Mr. Abramowitz of the allegation that Mr. Sankar
provided detailed information at the disputed meeting. Given that there was a good faith
basis for the denials (even in the absence of any specific memory of the meeting),
nothing about these denials would have struck an American lawyer as unusual or in
conflict with the truth that Mr. Abramowitz did not remember the June 2014 meeting.
Perhaps it is different in the context of German pleading, but under American
pleading rules, a denial must respond to the substance of the allegation. See Fed. R.
Civ. P. 8(b)(1)(B) and (b)(2). Similarly, under the American rules, a failure to deny an
allegation (other than one relating to the amount of damages) is deemed admitted if a
responsive pleading is required and the allegation is not denied. Fed. R. Civ. P. 8(b)(6).
The denial of an allegation puts the opposing party to its proof. And there is no
28
requirement that a denial of a specific allegation be based on a party’s own personal
memory or personal knowledge. Thus, to an American lawyer’s mind, the pleadings
submitted on Mr. Abramowitz’s behalf in the German proceedings would not have
necessarily been viewed as inconsistent with Mr. Abramowitz’s testimony concerning
his lack of recollection of the meeting.
As noted, there are only two places, buried among 139 pages of 567 factintensive, legally complicated paragraphs, where Mr. Abramowitz’s German counsel
makes reference to Mr. Abramowitz’s supposed “recollection.” And even those two short
references are ambiguous. First, the Quadruplica, on page 14 of 23, states that per Mr.
Abramowitz’s “recollection,” “technical aspects were not mentioned” in the June 2014
conversation and “the term CyberMesh was not mentioned.” Dkt. #1-6 at 15, ¶ 56. Even
if he had no specific recollection of the meeting, Mr. Abramowitz could nevertheless
truthfully say that “technical aspects were not mentioned” and neither was “Cybermesh,”
because he does not remember hearing any technical details or the word “Cybermesh”
from Sankar at any time. At worst, this use of the term “recollection” in this context is
ambiguous.
The reference to Mr. Abramowitz’s “recollection” being “consistent” is also, at
worst, ambiguous. It is used in a paragraph that contrasts Mr. Abramowitz’s memory of
not having ever received any technical information from Mr. Sankar, which was
unchanging, with Mr. Sankar’s recollection, which the Quadruplica brief describes as
“ever more ‘detailed’ and ‘adapted’ to suit the needs of Plaintiff’s briefs as the
proceedings advance.” Id., ¶ 57.
29
Thus, a review of the materials submitted does not suggest, at least to this
American-trained lawyer and jurist, that Mr. Abramowitz and the W&C Lawyers were
somehow conspiring to deceive the German court. Assuming it is true that the W&C
Lawyers did convey to Mr. Abramowitz’s German counsel that Mr. Abramowitz had no
specific memory of the June 10, 2014 meeting (as German counsel has now
acknowledged), there would have not necessarily been any alarm bells that would have
gone off in the minds of the W&C Lawyers that the German pleadings potentially were
conveying the wrong impression to the German court. And Mr. Abramowitz, who
testified that he had communicated the facts to the W&C Lawyers, in reviewing these
dense, translated documents, would not necessarily have perceived that in making two
short references to his “recollection” in 139 pages of material, his German’s counsel’s
pleadings were conveying a falsehood to the German court.
Obviously, the German court was concerned about the fact that Mr. Abramowitz’s
German counsel said that he had only learned a few days before the October 2021
hearing that Mr. Abramowitz had no specific memory of the June 2014 meeting. In
making his correction of this error to the German court, Mr. Abramowitz’s German
counsel reviewed attorney-client privileged and work product communications from the
W&C Lawyers and confirmed that he had in fact been told (at least twice) by the W&C
Lawyers that Mr. Abramowitz did not remember the June 2014 meeting.
Palantir claims that it cannot test Mr. Abramowitz’s German counsel’s correction
of the record without access to the privileged communications themselves. Mr.
Abramowitz submitted to me under restriction the two disputed email documents for in
camera review. See Dkt. #20. I have confirmed that these e-mails reflect attorney-client
30
and attorney work product material. I can also confirm that there is no indication of any
criminal conduct in either e-mail. See Dkt. #20 at 3, 9 (emails of October 7, 2019 and
October 3, 2020, filed under restriction). To the contrary, and without reciting the
contents verbatim, the relevant portions of the two e-mails reflect exactly what Mr.
Abramowitz’s German counsel told the German court in his Personal Statement: that
the W&C Lawyers informed German counsel “in writing on 7 October 2019 that [Mr.
Abramowitz] had already testified to having no recollection of the meeting on 10 June
2014. This was subsequently repeated in writing on 3 October 2020, a few days before
the Quadrupilca was filed.” Dkt. #1-15 at 3.
I have conducted my own review of the materials submitted to the German court.
I have considered Mr. Abramowitz’s German counsel’s correction of his misstatement. I
have reviewed in camera the attorney-client privileged emails which confirm the
accuracy of the correction—that the W&C Lawyers had told Mr. Abramowitz’s German
counsel of his testimony in the United States that he did not remember the June 10,
2014 meeting with Mr. Sankar. In light of all this information, I conclude there is no basis
from which to conclude that the W&C Lawyers conspired with Mr. Abramowitz to commit
fraud on the German court. Thus, Palantir has not made out a prima facie case that the
crime-fraud exception should apply to breach the attorney-client privilege. This is so, no
matter the standard used to establish a prima facie case. I do not find probable cause to
believe that a crime has occurred. Nor, if the case were to go to trial on the evidence
submitted would I allow the issue to go to a jury. In light of all the information currently
before this Court (as opposed to what was before the German court when it issued its
31
criminal complaint), no reasonable jury could find that the W&C Lawyers conspired with
Mr. Abramowitz to commit litigation fraud.
No Waiver of the Attorney-Client or Work Product Privilege
Further, I find that Mr. Abramowitz has not waived attorney-client privilege
regarding his or his attorneys’ preparation of the submissions to the German court.
None of the three bases for waiver asserted by Palantir is persuasive.
For there to be an implied waiver of the attorney-client privilege under the Tenth
Circuit’s Frontier Refining standard, there must be an “affirmative act” of some kind by
the party claiming privilege to put the privileged communication “at issue by making it
relevant to the case.” I do not find any affirmative act by Mr. Abramowitz to have put any
privileged communication at issue.
First, Palantir claims that Mr. Abramowitz put his lawyers’ advice “at issue,”
when, in response to direct questions from the German court, Mr. Abramowitz
answered: “The US lawyers consulted with the German lawyers on the content of the
pleadings. I relied on my US lawyers, as they know the facts.” Dkt. #1 at 22 (citing Dkt.
#1-9 at 4). This is not a sufficient “affirmative act” to justify waiving the privilege. If it
were, then any response, in any deposition or court hearing, that a deponent had
consulted with his lawyers in advance of the deposition or hearing and relied on their
legal advice in preparing, would arguably be a waiver of privilege with respect to all the
preparations. Such a rule makes no sense. For example, in Aull v. Cavalcade Pension
Plan, 185 F.R.D. 618 (D. Colo. 1998), the court addressed a suit against a pension plan
for adopting a disputed interpretation of the plan. The plaintiff asserted that the
interpretation was unreasonable and was adopted in bad faith. One of the plan
32
representatives testified in deposition that the plan committee had relied on the advice
of counsel in denying the pension claim. The court held that merely stating in deposition
testimony that the plan had relied on advice of counsel “does not establish an at issue
waiver as to this advice.” 185 F.R.D. at 630.
Similarly in Oil, Chemical & Atomic Workers International Union (OCAW) v.
Sinclair Oil Corp., 748 P.2d 283 (Wyo. 1987), it was argued that the defendants in a
libel case had waived attorney-client privilege by stating during discovery that their
decision to publish an allegedly libelous letter was made with the advice and assistance
of counsel. Notwithstanding the fact that reliance on a formal defense of advice of
counsel might be held to constitute a waiver of the attorney-client privilege, the
Wyoming Supreme Court rejected the argument that merely stating in response to
questions posed at a deposition that an attorney participated in the decision to publish
could amount to a waiver of the privilege. Id. at 290; see also Edna Epstein, AttorneyClient Privilege & the Work Product Doctrine 1.IVT.5 (6th ed. 2017) (explaining that if
the law were otherwise, “the privilege veil could be stripped in virtually any and every
situation that a party has consulted with an attorney and answered affirmatively to the
question whether it had done so.”).
In addition, the context in which Mr. Abramowitz’s answer was given is important.
As Palantir itself says, Mr. Abramowitz was testifying under oath in a foreign country,
responding to direct questions from the German court, and was subject to “the threat of
immediate arrest.” Dkt. #1 at 11. It can hardly be argued that a truthful response to a
question from a foreign tribunal about the involvement of counsel in reviewing
pleadings, under the threat of immediate arrest, constitutes a voluntary affirmative act
33
sufficient to waive the attorney-client privilege. See Riggins v. City of Louisville, 2008
WL 11429560, at *1 (D. Colo. May 28, 2008) (stating, in the context of inadvertent
disclosure, that “[a]n involuntary disclosure . . . does not constitute a waiver”); Equity
Analytics, LLC v. Lundin, 248 F.R.D. 331, 334 (D.D.C. 2008) (“[A] judicially compelled
disclosure of otherwise privileged information is not a waiver of any privilege that could
be claimed.”). Mr. Abramowitz did not disclose the any attorney-client communications
in his answer and was truthfully responding to inquiries from the German court.
This is unlike the “at-issue waiver” case cited by Palantir in its reply, United
States v. Osage Wind, LLC, Case No. 14-cv-704-GKH-JFJ, 2021 WL 149266 (N. D.
Okla. Jan. 16, 2021). In Osage Wind, the defendants had affirmatively pled that their
conduct (later determined to be illegal) was taken in good faith “based upon a detailed
legal analysis.” Id. at *3. This was deemed to be a waiver of the privilege because their
good faith belief and the detailed legal analysis was injected into the case by this
affirmative defense. Id. at *5–6. By contrast, in this case, there has been no formal
pleading of reliance on advice of counsel by Mr. Abramowitz and no “at-issue” waiver.
Second, there was no implied waiver by Mr. Abramowitz when his German
counsel took the entirely appropriate step of correcting his misstatement to the German
court. Had German counsel correctly answered the question when initially asked, there
would have been no arguable waiver of privilege. The fact that German counsel
corrected his misstatement after reviewing correspondence with Mr. Abramowitz’s
American counsel does not mean that Mr. Abramowitz waived privilege with respect to
all underlying documents or communications between Mr. Abramowitz, his American
lawyers, and his German lawyer. In the American legal system a lawyer owes a duty of
34
candor to the tribunal as an officer of the court. See Colorado Rule of Professional
Conduct 3.3(a)(1) (“A lawyer shall not knowingly make a false statement of material fact
or law to a tribunal or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.”). It appears that German courts have similar
expectations of truth and candor from lawyers who practice before them, which includes
a duty to retract a statement a lawyer later realizes to be untrue. See, e.g., Dkt. #15-1 at
5–6, ¶¶ 11–13, Decl. of Dr. Anke C. Sessler.
I agree with Mr. Abramowitz’s position that he is not relying on the post-litigation,
internal communications amongst his lawyers to defend the patent case. The two
communications referenced by his German lawyer in making his correction have no
bearing on the underlying patent case other than to substantiate the correction by Mr.
Abramowitz’s former German counsel. In addition, as previously explained, I have
reviewed the disputed communications in camera and they reflect exactly what is
represented.
Finally, there was no waiver when Mr. Abramowitz sought, via the motion in
limine in ongoing American litigation in Delaware, to preclude reference to the German
proceedings. The motion in limine, filed December 8, 2021 in the Superior Court of the
State of Delaware (Dkt. #1-22), does not disclose any attorney-client privileged
communications and is not using the privilege as a sword. The limited passage of the
motion in limine to which Palantir refers reads as follows:
As Palantir knows, Abramowitz has consistently testified, starting in
2017, that he does not remember any such meeting. When addressing that
same issue in his German briefs, Abramowitz unsurprisingly intended to
give a consistent account and deny Palantir’s allegations about the meeting
for multiple reasons, including because he was never provided any
technical information from Palantir relating to the patent applications, either
35
in June 2014 or at any other time. But the German court understood
Abramowitz’s German briefs—which were drafted by German lawyers and
submitted in German [n.1]—to suggest that Abramowitz remembered a
purported meeting from seven years before. That was not what Abramowitz
intended to convey.
Dkt. #1-22 at 3–4. The footnote included in this passage reads, “Neither Abramowitz nor
his US counsel speak German. Drafts of the brief were reviewed in translation.” Id.
Palantir argues that this footnote should be read to say that Abramowitz is
suggesting “any mistakes in is German filings were the result of faulty translations of the
draft German filings,” Dkt. #1 at 22, and that this constitutes an implied waiver of the
attorney-client privilege. This is weak sauce indeed. The motion in limine argues that
the German proceedings are completely irrelevant to whether Palantir interfered with
Abramowitz’s ability to sell his stock in 2015 and that any reference to convoluted
German litigation would be confusing to the Delaware jury. Dkt. #1-22 at 2–3, 5–6, 8–9.
The section cited above was necessary to paint the picture of how confusing any
reference to the German litigation would be. Nothing about that submission in Delaware
constitutes a waiver of Mr. Abramowitz’s attorney-client privilege.
CONCLUSION
For the foregoing reasons, I find that Palantir’s request under 28 U.S.C. § 1782
to obtain a deposition of Mr. Abramowitz and subpoena documents from his American
counsel is improper because it seeks attorney-client privileged information and attorney
work product. Mr. Abramowitz’s the attorney-client privilege has not been waived with
respect to this information. I have also reviewed in camera the disputed documents and
do not find any basis to find that the crime-fraud exception to the attorney-client
privilege would apply. Because the application seeks attorney-client privileged
36
information as to which no exception applies, granting the application would violate 28
U.S.C. § 1782 and constitute an undue burden under the discretionary factors listed by
the Supreme Court.
Therefore, Petitioner Palantir’s application is DENIED.
NOTICE: Rule 72(a) of the Federal Rules of Civil Procedure provides that
when a pretrial matter not dispositive of a party’s claim or defense is referred to a
Magistrate Judge to hear and decide, the Magistrate Judge must issue a written
order stating the decision. Within fourteen (14) days after service of a copy of this
Minute Order, any party may serve and file written objections with the Clerk of the
United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(a). Failure to make any such objection will result in a waiver of the
right to appeal the non-dispositive order. See Sinclair Wyo. Ref. Co. v. A & B
Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to nondispositive orders)
Dated:
June 30, 2022
Denver, Colorado
N. Reid. Neureiter
United States Magistrate Judge
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