IN RE: KARAM SALAH AL DIN AWNI AL SADEQ et al
Filing
7
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/18/2021; that the Application (Docket Entry 1 ) is GRANTED. Applicants may serve on Del Rosso and Vital Management the subpoenas attached to the Merritt Declaration as Exhibit A and Exhibit B (Docket Entries 3 -1, 3 -2), along with a copy of this Memorandum Opinion and the other filings in this matter (Docket Entries 1 to 6 -6). In accordance with the spirit of Federal Rule of Civil Proc edure 45(a)(4), Applicants shall also serve copies of the subpoenas and this Memorandum Opinion on Dechert Defendants and the defendants in the Grayson Proceeding. FURTHER ORDERED that Del Rosso and Vital Management shall respond to the subpoenas consistent with the Federal Rules of Civil Procedure and this Court's Local Rules. (Hicks, Samantha)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
In re Application of KARAM SALAH
AL DIN AWNI AL SADEQ and
STOKOE PARTNERSHIP SOLICITORS
for an Order Under
28 U.S.C. § 1782 to Conduct
Discovery for Use in Foreign
Proceedings.
)
)
)
)
)
)
)
1:21mc6
MEMORANDUM OPINION AND ORDER
This case comes before the Court on the “Ex Parte Application
for an Order Under 28 U.S.C. § 1782 to Conduct Discovery for Use in
Foreign Proceedings” (Docket Entry 1) (the “Application”).1
For
the reasons that follow, the Court will grant the Application.2
1
For legibility reasons, this Memorandum Opinion uses
standardized capitalization, but retains the British spelling and
punctuation in all quotations.
2 “Courts disagree over whether a Section 1782 proceeding, or
a motion thereunder, is a dispositive motion requiring the
magistrate judge to issue a report and recommendation.”
In re
Peruvian Sporting Goods S.A.C., No. 18-mc-91220, 2018 WL 7047645,
at *3 (D. Mass. Dec. 7, 2018) (collecting cases). However, the
United States Court of Appeals for the Fourth Circuit has affirmed,
under an abuse of discretion standard, a district court judge’s
affirmation, under the clearly erroneous or contrary to law
standard, of a magistrate judge’s grant of a Section 1782
application. See generally In re Naranjo, 768 F.3d 332 (4th Cir.
2014) (explaining that, in ruling on Section 1782 application, “the
magistrate judge ordered [certain individuals] to turn over the
documents that they possessed” and, “[o]ver objection, the district
court affirmed the magistrate judge’s decision in a July 16, 2013
order,” id. at 341-42; analyzing substantive challenges to
magistrate judge’s rulings, see id. at 347-51; and “affirm[ing] the
district court’s order in the § 1782 proceeding,” id. at 351, under
“the familiar abuse-of-discretion standard,” id. at 347); see also
Chevron Corp. v. Page, No. 8:11cv395, Docket Entry 74 at 1 (D. Md.
July 16, 2013) (overruling objections to magistrate judge’s Section
1782 order, “the Court concluding that the challenged Order was
neither clearly erroneous nor contrary to law”), affirmed In re
(continued...)
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 1 of 42
BACKGROUND
Karam Salah Al Din Awni Al Sadeq (“Al Sadeq”) and Stokoe
Partnership
Solicitors
(“Stokoe,”
and
collectively,
the
“Applicants”) have moved, “pursuant to 28 U.S.C. § 1782 and Federal
Rules of Civil Procedure 26 and 45” (Docket Entry 1 at 1), for
leave to serve two subpoenas on Nicholas Del Rosso (“Del Rosso”)
(Docket Entry 3-1 at 2) and “Vital Management Services Inc.”
(“Vital Management”) (Docket Entry 3-2 at 2) in connection with
ongoing litigation in the United Kingdom (at times, the “UK”).
(See Docket Entry 1 at 1-2, 4-6.)3
They further “request[ed] that
the Court grant such leave ex parte.”
(Id. at 1.)
In support of
their request, Applicants provided the “Declaration of Haralambos
Tsiattalou” (Docket Entry 4) (the “Tsiattalou Declaration”), with
various
attachments
(see
Docket
Entries
4-1
to
4-15),
the
“Declaration of Mark W. Merritt” (Docket Entry 3) (the “Merritt
2(...continued)
Naranjo, 768 F.3d at 351; 28 U.S.C. § 636(b)(1) (applying “clearly
erroneous or contrary to law” standard to magistrate judge orders
on “any pretrial matter” not specifically exempted under Section
636(b)(1)(A), and applying de novo standard to magistrate judge
recommendations on eight “motion[s] excepted in subparagraph (A),”
none of which involve Section 1782 applications). Accordingly, the
undersigned United States Magistrate Judge will issue an order
rather than a recommendation on the Application.
3 Applicants assert that, “[u]pon information and belief, Del
Rosso is the owner and president of Vital Management.” (Docket
Entry 2 at 4 n.2; see also Docket Entry 4-4, ¶ 1 (Del Rosso witness
statement characterizing Del Rosso as “President and owner of Vital
Management”).)
2
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 2 of 42
Declaration”), and the proposed subpoenas (see Docket Entries 3-1,
3-2).
I. Factual Background
According to Applicants:
Haralambos Tsiattalou (“Tsiattalou”), “a partner at [Stokoe,
a] UK-based law firm,” serves as Al Sadeq’s lawyer “in civil
proceedings pending in the High Court of Justice of England and
Wales, Queen’s Bench Division captioned Karam Salah Al Din Awni Al
Sadeq v. Dechert, LLP, Neil Gerrard, David Hughes, and Caroline
Black, Claim No. QB-2020-000322 (the ‘Al Sadeq Litigation[’)].”
(Docket Entry 4, ¶ 1.)
In turn, Stokoe “is the Claimant in civil
proceedings pending in the High Court of Justice of England and
Wales,
Queen’s
Bench
Division
captioned:
Stokoe
Partnership
Solicitors v. Mr. Patrick Tristram Finucane Grayson, Grayson + Co
Limited, Mr. Stuart Robert Page, and Page Corporate Investigations
Limited, Claim No.[] QB-2020-002492 (the ‘Grayson Proceeding[,]’”
and
collectively
Proceedings”).
with
(Id.)
the
Al
Sadeq
Litigation,
the
“Foreign
“Stokoe was also the claimant in concluded
High Court proceedings captioned: Stokoe Partnership Solicitors v.
Mr. Paul Robinson, Company Documents Limited, and Mr. Oliver Moon,
Claim
No.
QB-2020-002218
(the
‘Robinson
Proceeding[,’
and
collectively] with the Grayson Proceeding[,] . . . the ‘Hacking
Claims’).”
(Id.)
3
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 3 of 42
The
Al
Sadeq
Litigation
concerns
alleged
violations
of
international and United Arab Emirates (the “UAE”) law, as well as
of Al Sadeq’s human rights, committed “by Neil Gerrard (‘Gerrard’),
a solicitor and partner in Dechert UK [(‘Dechert’)], and [two other
current or former Dechert partners, David Hughes (‘Hughes’) and
Caroline Black (‘Black’) (collectively with Dechert and Gerrard,
the ‘Dechert Defendants’),] in connection with their investigation
of fraud allegedly perpetrated against the RAK Investment Authority
([the] ‘RAKIA’)” (id., ¶ 4).
(See id., ¶ 2, 4.)4
Al Sadeq denies
involvement in the alleged fraud and “maintains that the charges
against him were politically motivated . . . and that he was
convicted on the basis of false confessions obtained from him under
duress by [Dechert] Defendants.”
(Docket Entry 4-1, ¶ 1.)
Al Sadeq served as legal adviser, Group Legal Director, and,
ultimately, Deputy Chief Executive Officer of RAKIA between 2008
and 2012.
(Id., ¶ 35.)
In this capacity, he worked with Dr.
Khater Massaad (“Dr. Massaad”) (see id.), RAKIA’s former Chief
Executive Officer (the “CEO”) (see id., ¶ 8), and also “had regular
interactions with,” and was well known to (id., ¶ 36), Sheikh Saud
Bin Saqr Al-Qasimi, who, beginning in 2003, held the title of
“Crown Prince and Deputy Ruler of RAK” (id., ¶ 12; see also id.,
¶ 19 (discussing timing of that appointment)), before, “in October
4 “RAK” signifies Ras Al Khaimah, “one of the constituent
Emirates of the UAE” (Docket Entry 2 at 5). (See id. at 6.)
4
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 4 of 42
2010, . . . succeed[ing] his father as Emir of RAK” (id., ¶ 22).5
From at least 2003 until 2010, “Dr Massaad was the Ruler’s close
friend and confidant, in his presence on a daily, or almost daily,
basis.”
(Id., ¶ 12.)
In 2005, “RAKIA was established” (id., ¶ 14), and, from that
time until approximately 2012, Dr. Massaad served as RAKIA’s CEO,
controlling the “day to day management of RAKIA” and “developing
investment strategies and taking investment decisions with the
knowledge, approval, and instructions of the Ruler” (id., ¶ 15).
“[B]y around 2010 RAKIA had, with the full knowledge and approval
of the Ruler, very significant investment interests outside RAK,
particularly in Georgia . . . .”
(Id., ¶ 17.)
For various
political, familial, and economic reasons beginning around 2008,
the Ruler directed that RAKIA should “divest itself of its foreign
investments” (id., ¶ 21), a sudden change in investment policy that
adversely affected the return on certain RAKIA investments (see
id.), after which a rift developed between the Ruler and Dr.
Massaad.
(See id., ¶¶ 15-25.)
Dr. Massaad “left RAK in around June 2012, on good terms and
without any suggestion of wrongdoing,” and “returned to the UAE on
several occasions thereafter until August 2014, including for
meetings with the Ruler.”
(Id., ¶ 25.)
However, in approximately
5 Despite the change in title during the relevant period, for
ease of reference, this Memorandum Opinion refers to the abovereferenced individual as “the Ruler.”
5
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 5 of 42
2014, the Ruler learned that one of his brothers, Sheikh Faisal,
whom the Ruler had denied appointment as Crown Prince following the
Ruler’s succession in October 2010 (id., ¶ 23), “causing animosity
between them” (id., ¶ 26), served as an investor in a business that
Dr. Massaad founded in Lebanon in 2012.
(See id., ¶¶ 26-27.)
“As
a result, the Ruler became concerned that Dr Massaad was working
with Sheikh Faisal and / or Sheikh Khaled[6] in order to destabilise
the Ruler, and that Sheikh Faisal and / or Sheikh Khaled were
plotting to remove the Ruler with the assistance of Abu Dhabi”
(id., ¶ 27), “the most powerful of the Emirates” (id., ¶ 20).
In particular:
Since finding out about Dr Massaad’s business
relationship with Sheikh Faisal in 2014 and following on
from the fall-out between Dr Massaad and the Ruler, and
the Ruler’s concerns about Dr Massaad’s involvement in
suspected moves to oust him by Sheikh Khaled and Sheikh
Faisal, the Ruler with the assistance of [Dechert]
Defendants has pursued a vendetta against Dr Massaad and
alleged co-conspirators such as . . . [Gela] Mikadze[ (at
times, “Mikadze”)7] and [Farhad] Azima [(“Azima”)8]
6 “Sheikh Khaled was the Crown Prince and Deputy Ruler [of
RAK] between around 1958 until around June 2003 when the [Ruler’s
father] removed [Sheikh Khaled] and replaced him with the Ruler.
This was an unpopular move in some quarters leading to street
protests in favour of Sheikh Khaled in RAK, and he retained
significant support in the Emirate to succeed the [Ruler’s
father].” (Id., ¶ 19.)
7
Mikadze formerly served as “General Manager of RAKIA’s
Georgia operations.” (Id., ¶ 9.5.)
8
“[A] US-Iranian businessman,” Azima “had dealings with
RAKIA” (id., ¶ 9.5) and has engaged in litigation with RAKIA in the
UK courts (see id., ¶ 62).
6
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 6 of 42
(including by recent proceedings in the English High
Court [(the “Azima Litigation”)9]).
The background set out above . . . is the context in
which wrongs have been committed against [Al Sadeq] who
has become collateral damage in the vendetta pursued by
the Ruler against Dr Massaad, against whom RAKIA
allegedly seeks to recover over USD 2 billion.
The
Ruler’s motive in pursuing his vendetta is both to punish
Dr Massaad for his supposed disloyalty by destroying his
reputation and discrediting him, and also to attempt to
conceal the Ruler’s own personal knowledge and direction
of RAKIA’s foreign investments for his own personal and
political benefit in the years before his accession. In
this regard, it is a matter of public record that Mr
Gerrard was appointed by the Ruler in order to
investigate and pursue Dr Massaad; and Mr Al Sadeq and
his wife were told both by Mr Gerrard and Mr Hughes that
the “Big Bastard” Dr Massaad, and his alleged
co-conspirators, were the people they were really after,
and that they merely wanted Mr Al Sadeq’s “cooperation”
to help them build that case. Despite several criminal
sentences having been pronounced against Dr Massaad by
the RAK courts in absentia, Dr Massaad maintains his
innocence and presently lives and works in Saudi Arabia,
an Interpol notice which had been lodged against him by
RAK now having been removed, and an extradition request
from RAK having been dismissed by the Saudi court.
(Id., ¶¶ 28-29 (internal paragraph numbering omitted).)
“RAK is regarded by international observers as having a record
of
human
rights
abuses
including
arbitrary
detention,
forced
9
In the Azima Litigation, RAKIA sued Azima for alleged
fraudulent misrepresentation, conspiracy, and breach of warranty
(see, e.g., Docket Entry 4-2, ¶¶ 5-10), relating in part to an
allegedly sham referral agreement connected to the sale of a
Georgian hotel, the creation of which involved Al Sadeq (see, e.g.,
id., ¶¶ 168-181.6).
In response, Azima “contend[ed] that the
claims should be struck out or dismissed on the ground that, in
bringing the claims, RAKIA [wa]s relying on confidential emails
that RAKIA obtained through its unlawful hacking of his email
accounts.” (Id., ¶ 10.) Azima also “counterclaim[ed] for damages
resulting from what he allege[d] was RAKIA’s hacking of his
emails.” (Id.)
7
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 7 of 42
confessions, unfair trials, and mistreatment in detention.”
¶ 30.)
(Id.,
Per the “Particulars of Claim” in the Al Sadeq Litigation
(id. at 2) (at times, the “Al Sadeq Claim”):
Al Sadeq’s treatment follows a similar pattern to the
examples [of human rights violations specified in a 2014
Amnesty International report detailed in the Al Sadeq
Claim] in that, inter alia, he was kidnapped, arbitrarily
detained for over five years, subjected to torture and
inhumane treatment while incarcerated in solitary
confinement for around 560 days, denied access to legal
representation, only occasionally allowed to see his
family, his family was denied information about his
whereabouts at all material times until April 2016, his
family was threatened and he was forced to sign false
confessions under duress which were used in order to
convict him and to implicate others including Dr Massaad.
[Dechert] Defendants were aware of the abuse to which Mr
Al Sadeq was subjected, which [as] pleaded [in the Al
Sadeq Claim] was orchestrated by Mr Gerrard with the
assistance of the other [Dechert] Defendants, at the
behest of the Ruler.
(Id., ¶ 33.)
“In summary,” according to the Tsiattalou Declaration, the Al
Sadeq Claim alleges Dechert Defendants’ involvement in:
a. The kidnap and extraordinary rendition of Mr. Al Sadeq
from Dubai to RAK (see paragraphs 40 to 47 of the Al
Sadeq Claim);
b. Mr. Al Sadeq’s unlawful detention without arrest or
charge, including a period of detention in solitary
confinement, under a false name, with no access to legal
representation (see paragraphs 105 to 109 of the Al Sadeq
Claim);
c. The interrogation of Mr. Al Sadeq. In particular, Mr.
Al Sadeq contends that during the first of his
interrogations by Mr. Gerrard, he was blindfolded with
his hands tied behind his back and had no lawyer present
(see paragraph 64 of the Al Sadeq Claim);
8
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 8 of 42
d. Threats and unlawful pressure made to Mr. Al Sadeq,
his wife, and children, including a promise by Mr.
Gerrard and Ms. Black that Mr. Al Sadeq’s prison
conditions could be improved if he “cooperated” with them
(see paragraphs 65 to 67, 89 to 98, and 120 to 130 of the
Al Sadeq Claim);
and
e. The procurement of false confessions signed by Mr. Al
Sadeq, but drafted by Mr. Gerrard and Mr. Hughes, in
circumstances where Mr. Al Sadeq was detained in the
above conditions, did not have access to legal
representation, and had made it clear that the
confessions were untrue (see paragraphs 183 to 184 of the
Al Sadeq Claim).
(Docket Entry 4, ¶ 5.)
Given the “extremely serious nature” of Al Sadeq’s allegations
“against senior lawyers and a global law firm of international
repute[,]
.
.
.
.
the
Al
Sadeq
Litigation
significant degree of publicity in the UK.”
has
generated
a
(Id., ¶ 6.)
“Stokoe was first retained to act in the Al Sadeq Litigation
in October 2019.
Since that time, there has been a correlation
between the progress of the Al Sadeq Litigation and attempts to
obtain confidential information from Stokoe and others in relation
to those proceedings.”
(Id., ¶ 7.)
On January 28, 2020, “[t]he
Claim Form in the Al Sadeq Litigation was issued” and, although
Stokoe did not serve it at that time, its “allegations were made
public in a press release published by Detained in Dubai on the
date of issue.”
10
(Id., ¶ 8.)10
“The Claim Form, which was made
An employee of “the London-based human rights advocacy
(continued...)
9
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 9 of 42
available online, was much more detailed than the amended version
ultimately served with the Particulars of Claim and contained
details of Mr. Al Sadeq’s claim and the nature of the allegations
made against the Al Sadeq Litigation defendants.”
(Id.)11
The
Claim Form also disclosed that “Stokoe was acting on behalf of Mr.
Al Sadeq.”
(Id.)
In February and March 2020, Tsiattalou and other members of
“Al Sadeq’s Legal and Support Team” (id., ¶ 3)12 traveled to Dubai
to meet with Al Sadeq’s local counsel and Al Sadeq, although they
ultimately did not receive permission to visit Al Sadeq (who
remained incarcerated in the RAK Central Prison as of March 31,
2020 (see Docket Entry 4-1, ¶ 214; see also id. at 65)).
Entry 4, ¶ 10.)
(Docket
During these trips, Tsiattalou and other members
of Al Sadeq’s Legal and Support Team
were the subject of surveillance activities, including an
apparent break-in to [Tsiattalou’s] hotel room, the
presence of surveillance agents at [Tsiattalou’s] hotel
(where [Tsiattalou] attended privileged meetings in
relation to the conduct of the Al Sadeq Litigation), and
10(...continued)
organization ‘Detained in Dubai,’” Radha Stirling, has assisted Al
Sadeq. (Id., ¶ 14.)
11 “Al Sadeq’s Amended Claim Form and Particulars of Claim
were served on March 31, 2020 and April 1, 2020.” (Id., ¶ 9.) The
Amended Claim Form details “various ways” that Stokoe’s “ability to
take instructions from Mr. Al Sadeq has been impeded . . . since
the Al Sadeq Litigation was issued.” (Id.)
12 Stokoe, 4 Stone Buildings (another UK law firm), Detained
in Dubai, and Maltin Litigation Support Group collectively comprise
“Al Sadeq’s Legal and Support Team.” (Id.)
10
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 10 of 42
an attempt to follow [Tsiattalou] to a privileged meeting
at a different location. [Tsiattalou] believe[s] these
matters were also connected to the Al Sadeq [L]itigation
and that they were intended to disrupt [his] ability to
obtain instructions (as they in fact did).
(Id.;
see
also
Docket
Entry
4-1,
¶¶
215-215.10
(detailing
surveillance and interference allegations).)
During a visit in
March
“were
2020,
Tsiattalou
and
his
colleagues
subject
to
intimidation and surveillance” and “an obviously frightened hotel
employee” warned Tsiattalou:
“You’re being followed/watched by security services.
They are very serious people. Nobody can stand in their
way.”
(Docket Entry 4, ¶ 11.)
Tsiattalou believes that Mr. Stuart Page
(at times, “Page”), who Tsiattalou “personally witnessed” on March
6, 2020, “whilst staying at the One and Only on the Palm Hotel in
Dubai” (id., ¶ 21), and who admitted his presence at Tsiattalou’s
Dubai hotel on that date, conducted this surveillance, along with
other individuals.
(Id., ¶ 12.)
According to the opinion of Judge Lenon, “sitting as a Deputy
Judge of the Chancery Division” (Docket Entry 4-2 (the “Azima
Judgment”)
at
2
(emphasis
omitted)),
issued
in
the
Azima
Litigation, “[i]n January 2015 Stuart Page, a private investigator,
was engaged by the Ruler to investigate what the Ruler feared was
11
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 11 of 42
a plot between a member of his family and Dr Massaad aimed at
destabilising his rulership.”
(Id., ¶ 31.)13
The Azima Judgment further explained:
In March 2015 Mr Page provided the Ruler with a
report entitled RAK Project Update (“the Project Update”)
which was mainly concerned with Dr Massaad’s activities
but which also described how Mr Azima was managing a team
of advisers in the US, hired by Dr Massaad, who were
planning to spread allegations about human rights issues
in RAK;[14] their campaign had not yet been made public.
Mr Page’s agents who compiled the report said that they
would be able to gather intelligence on the campaign team
13 “Mr Page’s initial engagement in RAK was between 2008 and
2010 when he undertook surveillance work on the behalf of the Ruler
who was at the time the Crown Prince. His remit was to try to
ascertain through surveillance what plans Sheikh Khalid, the
Ruler’s brother, had to try to destabilise the Crown Prince’s
position.” (Id., ¶ 260.)
14
These stories involved the alleged mistreatment of Al
Sadeq and his wife, including the involvement of Dechert and/or
Gerrard in Al Sadeq’s interrogations and detention. (See, e.g.,
Docket Entry 4-2, ¶¶ 197-201.8.) According to Judge Lenon:
In order to make good its case that Mr Azima
procured and promoted false stories in the media, it was
incumbent on RAKIA to establish that the stories which it
was intended to publish about human rights violations
were untrue.
It has not done so.
It appears that
Project Clay[, which RAKIA described as “a coordinated
programme designed to frustrate RAKIA’s attempts to
pursue legal remedies against Dr Massaad by procuring and
promoting the widespread publication of damaging false
stories in the international media” (id., ¶ 198.1),]
intended to draw attention to actual cases of detention
and illegality, not fabricated cases. The 2014 Amnesty
International Report indicates that there were real
grounds for concern about detention procedures in RAK.
None of RAKIA’s witnesses were in a position to refute
the findings in that report.
(Id., ¶ 202.)
12
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 12 of 42
in order to monitor their progress and “attempt to
contain or ruin their plans”.
*****
Neil Gerrard is a former policeman and a partner in
the firm of Dechert LLP which was instructed to assist
with the investigation into Dr Massaad’s alleged
fraudulent activities which it has continued to work on
to the present time. His witness statement dealt with
his engagement by RAK, the meeting he had with Mr Azima
in July 2016 and the events in August 2016 surrounding
the downloading of [Azima’s] hacked material.
He was
cross-examined about his involvement with the questioning
of detainees within RAK, in particular Karam Al Sadeq and
Shahab Izadpanah.
Allegations that Mr Gerrard had
attempted, on behalf of RAK, to extort money from Mr
Izadpanah and had offered Mr Izadpanah and Mr Al Sadeq to
drop all charges against them if they confessed to
charges implicating Dr Massaad were put to Mr Gerrard who
denied them in forthright terms. On the basis of the
material before [Judge Lenon, he was] not in a position
to make any findings in relation to those allegations or
other allegations of misconduct extraneous to the events
in issue in these proceedings that were put to Mr
Gerrard.[15]
15 Following entry of the Azima Judgement, and prompted by
the Al Sadeq Litigation, Gerrard disclosed that he provided false
testimony in the Azima Litigation regarding the nature and extent
of his interactions with Al Sadeq and his wife.
See generally
Azima, Docket Entry 22-2. As relevant here, Judge Lenon “agree[d]
with Mr Azima’s submission that the corrected evidence cumulatively
creates a materially different impression of the extent and nature
of Mr Gerrard’s dealings with Mr Al Sadeq.” Id., Docket Entry 222, ¶ 14. Judge Lenon further rejected “RAKIA’s submission that the
erroneous evidence goes to peripheral matters which were of no
relevance to the substantive issues. There was a pleaded issue on
RAKIA’s own case in the proceedings as to whether the stories about
human rights abuses and Dechert’s involvement in those abuses were
false . . . .” Id., Docket Entry 22-2, ¶ 15 (citing Docket Entry
4-2, ¶¶ 197-198).
However, Judge Lenon declined to reopen the
Azima Judgment because, inter alia, he found that disclosure of
Gerrard’s false testimony and his subsequent revisions thereto did
not alter “[Judge Lenon’s] conclusions on any of the substantive
issues.” Id., Docket Entry 22-2, ¶ 22.
13
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 13 of 42
Counsel for Mr Azima submitted that Mr Gerrard gave
dishonest evidence on key issues. He was also criticised
for not referring to Mr Page and the Project Update in
his witness statement.
In [Judge Lenon’s] view, Mr
Gerrard’s witness statement should have dealt with the
Project Update which was a clearly relevant document and
one which, as he accepted in cross-examination, was of
concern to him when it was produced because it referred
to the threat of a press campaign to smear RAK and its
Ruler with human rights allegations.
[Judge Lenon]
do[es] not, however, regard the omission to deal with the
Project Update, or the other criticisms made of his
evidence, as leading to the conclusion that [Judge Lenon]
should treat Mr Gerrard as dishonest.
Stuart Page, also a former policeman and now the
Chairman and majority shareholder of a business providing
security and surveillance services, dealt in his witness
statement with his engagement in RAK to assist with the
investigations into Dr Massaad and the discovery of the
hacked material. Counsel for Mr Azima submitted that Mr
Page was a dishonest witness who lied about a number of
matters. [Judge Lenon] consider[s] that Mr Page was an
unsatisfactory and unreliable witness.
As set out in
greater detail in the context of the [Azima] hacking
claim, his witness statement was misleading in relation
to two significant matters. First, his witness statement
implied that he did not produce written reports for the
Ruler on his investigations whereas in fact he did so on
a regular basis. Second, his witness statement said that
he first came across the name of Mr Azima in early 2016
whereas . . . it was in fact a year earlier.
His
evidence in connection with the discovery of the hacked
material was both internally inconsistent and at odds
with the contemporary documents.
[Judge Lenon] ha[s]
concluded that it would be unsafe to rely on any evidence
from Mr Page that was not corroborated by some other
source.
*****
[Three referenced cases involving Page and illegally
obtained information] highlight the fact that Mr Page
operates in a world of covert surveillance in which
agents acquire confidential information unlawfully and
that Mr Page has dealings with such agents. It would be
a reasonable inference to draw from these incidents that
Mr Page has access to agents with the capacity to hack
14
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 14 of 42
emails. However these other incidents do not establish
that Mr Page ever personally carried out or authorised
the unlawful obtaining of confidential information and
therefore do not affect [Judge Lenon’s] assessment of the
inherent likelihood of Mr Page acting unlawfully in this
case. Mr Azima also relied on the level of Mr Page’s
remuneration of between $100,000 and $300,000 per month
as being “consistent with Mr Page obtaining information
by illicit means and of seeking a premium for such
nefarious activity.” Mr Page was certainly generously
remunerated but [Judge Lenon] do[es] not consider that
his rate of remuneration can sensibly be taken as a sign
of illicit activity.
(Id., ¶¶ 32, 62-64, 369 (internal paragraph numbering omitted).)
In the Azima Litigation, RAKIA maintained that Page innocently
discovered websites containing Azima’s hacked emails, which Gerrard
then enlisted Del Rosso to download, a task Del Rosso achieved with
the help of Northern Technology Inc. (“NTi”).
¶¶
51-53,
336-343.11.)16
Judge
Lenon
(See, e.g., id.,
“conclude[d]
from
the
unexplained contradictions, inconsistences and implausible elements
that RAKIA’s case that Mr Page discovered the blogging websites
linked to the BitTorrent sites [containing Azima’s hacked data]
innocently via [an Israeli journalist] and another unidentified
informer is not true and that the true facts as to how RAKIA came
16 In support of this contention, RAKIA submitted a witness
statement from Del Rosso that attributes the discovery of all but
one batch of data to Page and the discovery of the final data batch
to an NTi employee. (See generally Docket Entry 4-4.) Del Rosso’s
witness statement further indicates that, in August 2014, Dechert
engaged Vital Management “to investigate assets potentially stolen
from the Government of [RAK]. Pursuant to its engagement[, Vital
Management] examined potential frauds committed by, amongst others,
[Dr.] Massaad.” (Id., ¶ 4.) Del Rosso “took [his] instructions
from Dechert LLP, and had limited direct contact with Jamie
Buchanan and other representatives of the RAK government.” (Id.)
15
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 15 of 42
to know about the hacked material have not been disclosed.”
¶
355;
see
assertions).)
also
id.,
¶¶
342-54
(examining
(Id.,
evidence
and
Per Judge Lenon, though, “[i]t does not of course
necessarily follow from this conclusion that RAKIA was responsible
for the hacking.”
(Id., ¶ 356.)
As to Azima’s hacking claim, Judge Lenon ultimately
accept[ed] that the hypothesis advanced on behalf of Mr
Azima that Mr Page, acting with the express or implied
authority of the Ruler, arranged for Mr Azima’s emails to
be hacked . . . and that it was decided to deploy the
hacked material in August 2016 once [a] ceasefire with Dr
Massaad was over, is not impossible. It would provide an
explanation for the fact that the hacked material came to
light when it did and for RAKIA’s failure to provide a
convincing account of its innocent discovery of the
hacked material. It is equally not impossible that Mr
Page arranged for Mr Azima’s emails to be hacked without
the knowledge of Mr Gerrard or [James] Buchanan
[(“Buchanan”)17] or the Ruler’s advisers so that the
instigation of these proceedings did not entail a
conspiracy between them, even though the witnesses may
have harboured suspicions about Mr Page’s role.
17 Buchanan served as a representative of RAK and the CEO of
Ras Al Khaimah Development LLC (see, e.g., Docket Entry 4-1, ¶ 143;
Docket Entry 4-4, ¶ 4), an entity “which holds and manages assets
and liability previously owned by [RAKIA], and is thus intimately
tied to the Al Sadeq Litigation” (Docket Entry 6, ¶ 15). Per the
Azima Judgment:
In around April 2015, the Ruler told Mr Buchanan that he
wanted Mr Buchanan and other assistants to “target” Mr
Azima.
The Ruler directed his associates to bring
charges against Mr Azima.
The Ruler’s associates
discussed meeting to “coordinate our attack” on Mr Azima
and Dr Massaad but persuaded the Ruler not to pursue this
plan at that time.
(Docket Entry 4-2, ¶ 33.)
16
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 16 of 42
It is, however, not enough for Mr Azima to advance
a case that is not impossible.
Based on all of the
documentary and witness evidence, [Judge Lenon] was not
satisfied on the balance of probabilities that RAKIA was
responsible for the hacking of Mr Azima’s emails. The
facts supporting the inference that RAKIA was responsible
for the hacking are far from conclusive and the
improbable features of Mr Azima’s case can only be
explained away on the basis of speculative assumptions
for which there is no sufficiently firm evidence.
(Id.,
¶¶
380-381
Accordingly,
Judge
(internal
Lenon
paragraph
denied
Azima’s
numbering
hacking
omitted).)
counterclaim.
(See id., ¶¶ 382-84.)
On appeal, Azima sought to introduce new evidence relevant to
his hacking claims.
As the UK appellate court explained:
A tip-off from Thomson Reuters after the trial led Mr
Azima to conclude that he had not been the only victim of
spear-phishing[18] emails but that others who had been
named in the Project Update had also been targets.
Linked with the tip-off was a report by The Citizen Lab
released on 9 June 2020 which claimed to have uncovered
a “massive hack-for-hire operation” said to be linked to
an Indian company called BellTrox.
The information provided by Thomson Reuters
consisted of email addresses (both recipients and
senders) together with dates and times of sending,
beginning in March 2015.
The recipients included not
only Mr Azima but also others who had been named in the
Project Update. Following the information provided by
Thomson Reuters Mr Azima’s computer expert (who had given
evidence at trial) produced a further report in which he
18
Tsiattalou explained that phishing and spear-phishing
communications “seek to trick the recipient into clicking on a link
to a website which itself contains malicious software which is
downloaded onto the recipient’s device. Spear-phishing is a more
sophisticated form of phishing where the communication contains
specific information, targeted at the recipient, which makes it
more likely that the recipient will click on the link.” (Docket
Entry 4, ¶ 43.)
17
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 17 of 42
said that certain features of the material demonstrated
that these emails were spear-phishing emails.
This
evidence was said to show that Mr Azima had been the
target of phishing emails which began at the same time as
the Project Update was provided to RAKIA: that is to say
in March 2015. RAKIA’s computer expert (who had also
given evidence at trial) made a number of sustained
criticisms of that report. RAKIA also took the point
that since one of the allegations at trial was that Mr
Azima’s emails had been hacked because he was named in
the Project Update, it would have been open to him to
have asked the others also named in that report to allow
access to their email accounts.
Indeed, RAKIA had
applied for disclosure from at least three of those
individuals, which Mr Azima refused.
Mr Azima subsequently instructed Mr Rey, a security
consultant based in Switzerland, to investigate.
Mr
Rey’s investigations into BellTrox led him to another
Indian company called CyberRoot. He spoke to a Mr Vikash
Kumar Pandey, a former employee of CyberRoot. Mr Pandey
told him that he and four of his colleagues had worked on
the hack of Mr Azima on the instructions of Mr Del Rosso
(who had given evidence for RAKIA at trial,[19] but had
not mentioned CyberRoot). Mr Pandey began working on the
hack in June or July 2015; that is to say some three to
four months after the date of the Project Update. Mr
Pandey described the methods that he and his colleagues
had used. CyberRoot’s efforts to hack Mr Azima’s emails
were initially unsuccessful; but they gained access to
them in March 2016. He also described how CyberRoot had
disseminated Mr Azima’s information on the internet.
CyberRoot had been paid about $1 million for this work.
In response to this evidence Mr Del Rosso made
another witness statement.
He accepted that he had
engaged CyberRoot to carry out work on RAKIA’s behalf;
and had arranged the payment to CyberRoot of the $1
million. But he said that that was for different work
which had nothing to do with Mr Azima.
19 In his witness statement in the Azima Litigation trial,
Del Rosso maintained that he “did not hack Mr Azima’s computers,
cause him to be hacked or know who hacked him. [Del Rosso] did not
upload his data to the internet, cause his data to be uploaded or
know who did upload his data.” (Docket Entry 4-4, ¶ 20.)
18
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 18 of 42
Whether RAKIA was involved in the hacking is hotly
in dispute. Moreover, Mr Panday’s account of how the
hacking began is at variance both with Mr Azima’s case
and also with what the first tranche of fresh evidence is
said to demonstrate. His evidence is that CyberRoot only
gained access to Mr Azima’s email accounts in March 2016,
whereas Mr Azima’s case was that the hacking had taken
place many months earlier. If RAKIA had already obtained
access to Mr Azima’s email accounts many months earlier,
it is difficult to see why CyberRoot would have been
instructed to replicate the hacking. Nevertheless, if Mr
Panday’s account is true, it seems to [the appellate
court] that it will support Mr Azima’s allegation that
RAKIA was responsible for the hacking (although not the
way in which it was put at trial); and that RAKIA’s
defence to the counterclaim was dishonestly advanced.
That will in [the appellate court’s] judgment require a
complete re-evaluation of the evidence in support of the
hacking claim.
Azima v. Del Rosso, No. 1:20cv954, Docket Entry 49-1, ¶¶ 130-34
(M.D.N.C. Mar. 12, 2021) (internal paragraph numbering omitted);
see also id., ¶ 134 (describing “judgment for RAKIA on [Azima’s
hacking] counterclaim” as “procured by fraud”)).
Accordingly, on March 12, 2021, see id., Docket Entry 49-1 at
1, the UK appellate court remanded Azima’s hacking counterclaim for
retrial before a different chancery judge, noting as it did so that
“neither the parties nor the judge who hears the remitted issues
will be bound by any of the findings of fact made by the [original]
judge on the hacking [counter]claim,” id., Docket Entry 49-1,
¶ 146.
See id., Docket Entry 49-1, ¶¶ 145-46. The appellate court
further noted that, on remand, “it would be necessary” for Del
Rosso to testify.
Id., Docket Entry 49-1, ¶ 143.
Against this backdrop, Tsiattalou avers:
19
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 19 of 42
In late March 2020, Mr. Oliver Moon [(“Moon”)], a
private investigator, turned whistleblower, informed Mr.
Alexander Sawyer [(“Sawyer”)] (who works in corporate
intelligence via a company called Quaestio), that he had
been instructed by a “Source A2”, as he was described in
the Robinson Proceeding (and who was later revealed to be
a Mr. John Gunning[ (“Gunning”)]), to make attempts to
gain access to Stokoe’s confidential information. These
instructions continued throughout April 2020 and included
hacking Stokoe’s bank accounts, including its client
account. It was subsequently discovered that Source A2’s
instructions had in turn derived from a Mr. Paul
Robinson[ (“Robinson”)], another private investigator.
(Docket Entry 4, ¶ 13.)20
The Tsiattalou Declaration continues:
As he has since confirmed in an affidavit, Mr. Moon
was also instructed to procure confidential information
— including accessing their bank accounts — about others
assisting Mr. Al Sadeq, namely, Maltin Litigation Support
Group[, a legal public relations firm whose employee
traveled to Dubai with Tsiattalou in March 2020 (id.,
¶ 11), and Radha Stirling (at times, “Stirling”) of
Detained in Dubai]. The timing and coordination of this
hacking demonstrates that it is designed to interfere
with the Al Sadeq Litigation, and to undermine the
sanctity of the confidential relationship between
solicitor and client. For instance, just after the claim
form and Particulars of Claim were served in the Al Sadeq
Litigation and a couple of weeks before Dechert’s
solicitors made enquiries of Stokoe as to who was funding
that litigation, Mr. Moon was instructed to obtain
Stokoe’s banking co-ordinates.
On April 21, 2020, Mr. Gunning was instructed to
ascertain [Tsiattalou’s] movements “in and out of Dubai
— for Feb 2020.” As mentioned above, [Tsiattalou] was in
Dubai in February 2020 obtaining instructions in relation
to the Al Sadeq Litigation, and became aware that [he]
was the subject of surveillance and an unlawful break in.
(Id., ¶¶ 14-15 (internal paragraph numbering omitted).)
20
Sawyer had previously engaged Moon to conduct work on
Stokoe’s behalf, which presumably motivated Moon to disclose this
situation to Sawyer. (Id.)
20
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 20 of 42
In Tsiattalou’s view, “[t]here can be no doubt that the
attempted hacking of Stokoe was motivated by, and relates to, its
retainer by Mr. Al Sadeq.”
(Id., ¶ 16.)
Tsiattalou further avers:
As mentioned above, in late March 2020, Mr. Moon informed
Mr. Sawyer of Quaestio that he had been instructed to
obtain confidential information from Stokoe. Mr. Moon
agreed to work with Stoke [sic] and Mr. Sawyer to
establish the nature and origin of the requests.
[Tsiattalou] was informed by Quaestio (and Mr. Moon
has in an affidavit dated July 2, 2020 confirmed) that,
pursuant to the arrangement, Mr. Moon received the
following instructions from “Source A2” (an individual
Stokoe eventually identified as [Gunning]):
a. On April 2, 2020, Mr Moon was instructed to
obtain, amongst other things, the Stokoe’s banking
coordinates.
b. On April 9, 2020, Mr. Moon was instructed to
access
Stokoe’s
trading
bank
account
and
transactional data for the business bank account
for the last three months.
This period broadly
coincides with the period that had elapsed since
the issue of the Claim Form in the Al Sadeq
Litigation.
c. On April 21, 2020, Mr. Moon was instructed to
provide information relating to [Tsiattalou’s]
movements in and out of Dubai in February 2020.
This period broadly coincides with the period that
[Tsiattalou] attempted to visit Mr. Al Sadeq in the
[UAE]. As . . . detailed above, when [Tsiattalou]
visited Dubai during this time, [he] was subjected
to covert surveillance.
d. On April 22, 2020, Mr. Moon was instructed to
provide information relating to Stokoe’s client
account, including transactional information for
the month of March 2020. Mr. Moon was told that it
was likely information would also be sought for the
period November 2019 to February 2020, a period
overlapping almost exactly with the period of Mr.
Al Sadeq’s retainment of Stokoe.
21
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 21 of 42
Mr. Sawyer liaised with Stokoe to provide Mr. Moon
with Stokoe’s bank account documents in a format which
allowed covert tracking, to identify the recipients of
those documents. In this way, Quaestio established that
Mr. Moon was instructed by [Gunning], who was in tu[rn]
instructed by [Robinson]. Quaestio’s findings are set
out in a report, dated June 27, 2020, which is annexed
[to
the
Tsiattalou
Declaration
(“the
Quaestio
21
Report”) ].
Based on this information, Stokoe initiated the
Robinson Proceeding in the High Court of Justice of
England and Wales, Queen’s Bench Division seeking, inter
alia, to enjoin, and to obtain affidavits from, Mr. Moon,
Mr. Gunning, and Mr. Robinson. . . .
Proceedings against Mr. Robinson were stayed by a
consent order sealed by Justice Chamberlain, (the
“Chamberlain Order”). . . . Pursuant to the Chamberlain
Order, Mr. Robinson undertook to “swear an affidavit
stating on oath . . . the identity of any person who has
requested” that he “obtain Confidential Information from”
Stokoe.
Mr. Robinson swore an affidavit wherein he
stated that Mr. Patrick Grayson was the source of these
instructions. . . .
By letter dated November 30, 2020, Mr. Page’s
attorney, Stephenson Harwood, sent a letter to Stokoe
with invoices for the corporate research undertaken by
Company Documents Limited, Mr. Robinson’s company, on
behalf of Page Corporate Investigations Limited (London)
and Page Group ME JLT (Dubai). One of the invoices from
March 19, 2020, showed that the subject of an
investigation was the Brendale Group, a group of
companies associated to Mr. David Haigh who has been
closely associated to Radha Stirling and who are both
named in a press release attributing to their
associations and linked companies. Another invoice from
October 4, 2017, shows that a group of companies that
were involved in RAKIA’s case against Mr. Mikadze were
the subject of an investigation by Mr. Robinson’s company
21 As relevant here, the Quaestio Report indicates that, “in
addition to requests relating to Stokoe, a number of other targets
have been identified by Mr Robinson including: Maltin PR, Mr Tim
Maltin and, to lesser extent, Hogan Lovells International LLP,
[Azima], and [Stirling].” (Docket Entry 4-8, ¶ 3.)
22
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 22 of 42
as instructed by Mr. Page.
The companies under
investigation were all connected to Gela Mikadze who was
another individual investigated by Gerrard and RAKIA in
connection with Dr. Massaad.
Stokoe therefore brought further proceedings against
Mr. Grayson (amongst others) by Claim Form dated July 16,
2020. . . . Those proceedings were brought, inter alia,
to compel Mr. Grayson and Mr. Grayson’s associated
company, Grayson + Co Ltd, to reveal the source of their
instructions, any further wrongdoing, and to obtain
injunctive
relief
to
prevent
them
from
further
wrongdoing.
The application against Mr. Grayson and Grayson + Co
Ltd resulted in a consent order made by Justice Tipples,
(the “Tipples Order”). . . . Pursuant to the Tipples
Order, Mr. Grayson and Grayson[ ]+ Co Ltd undertook to
“swear an affidavit stating on oath . . . the identity of
any person who has requested that he “obtain Confidential
Information from” Stokoe.
Mr. Grayson’s affidavit (the “Grayson Affidavit”)
was notably brief. He stated that: “Nobody requested me
to obtain Confidential Information from or pertaining to
[Stokoe], directly or indirectly.”
(Id., ¶¶ 33-41 (heading, citations, internal paragraph numbering,
and certain parentheticals omitted) (certain ellipses and brackets
in original).)
“never
asked
The Grayson Affidavit further states that Grayson
Mr
Robinson
relating to [Stokoe].”
However,
to
obtain
Confidential
Information
(Docket Entry 4-15, ¶ 5.)
approximately
eight
months
after
submitting
the
Grayson Affidavit, Grayson provided further information in the
Grayson Proceeding that undermine the assertions in his affidavit.
In particular, Grayson admitted that, on January 30, 2020, he
informed “Robinson that he would be interested in any general
information as to how Mr Al Sadeq was funding the
Al Sadeq
23
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 23 of 42
[L]itigation,”
although
he
maintains
that,
during
this
conversation, he “did not ask Mr Robinson to obtain confidential
information about [Stokoe].”
(Docket Entry 6-3 at 3-4.)
Grayson
also acknowledged that, around the beginning of April 2020, he
asked Robinson if “it was still possible to find out in Dubai if an
individual had entered or left Dubai” and that, in response to
Robinson’s query whether “Grayson was interested in the travels of
anyone in particular,” he “mentioned Mr Tsiattalou, the senior
partner of
subsequently
[Stokoe],
sent
as
a
Robinson
identifying information.
potential
an
email
person
of
interest”
containing
and
Tsiattalou’s
(Id. at 4.)22
Grayson further admitted that his “interest in how Mr Al Sadeq
might be funding his litigation was prompted by a general question
raised with him in a telephone call on or shortly after 28 January
2020 with Mr Nicholas del Rosso of Vital Management,” with whom
Grayson “had a general consulting arrangement . . . (which was not
contained in any written agreement) to provide general business
intelligence services and advice.”
(Id. at 5; see also Docket
Entry 6-4 (containing three-year nondisclosure agreement, dated
August
30,
2018,
between
Vital
Management
and
Grayson).)
22 Nevertheless, Grayson maintains that he “did not provide
any instruction to Mr Robinson to investigate Mr Tsiattalou or his
movements; nor did he ask Mr Robinson to obtain confidential
information about [Stokoe] or to obtain information unlawfully,”
and he also “never asked Mr Robinson to provide information about
when Mr Tsiattalou entered or left Dubai.” (Id.)
24
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 24 of 42
Thereafter, in approximately “late March/early April 2020,” Grayson
and Del Rosso had another telephone conversation in which Del Rosso
asked “whether it was possible to find out if someone had travelled
into and out of Dubai” and, in response to Grayson’s query whether
“[D]el Rosso was potentially interested in the movements of anyone
in particular,” he “named Mr Tsiattalou and said he was the senior
partner at [Stokoe].
Shortly after and as a result of that
request, Mr Grayson had the conversation with Mr Robinson in or
around the beginning of April 2020” described above. (Docket Entry
6-3 at 5.)
In addition, on March 22, 2021, Page disclosed in the Grayson
Proceeding a letter, “dated September 16, 2020, from Allen & Overy
LLP (a firm representing the Ruler and Government of [RAK]) to
Stephenson Harwood LLP (the firm representing defendant Page in the
Grayson Proceeding), wherein a number of statements purportedly
made by defendant Page are referenced.”
(Docket Entry 6, ¶ 15.)
As relevant here, the letter states:
1.
We understand from Mr Jamie Buchanan that your
client, Mr Stuart Page, has made a number of
statements in communications that he had with Mr
Buchanan in August and September 2020 that appear
to refer to our clients, the Ruler and the
Government of [RAK].
*****
3.
Our clients are concerned to understand what
information your client intended to relay by his
statements to Mr Buchanan.
In particular, we
should be grateful if your client would provide us
with his explanation for the following statements:
25
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 25 of 42
(a)
your client referred to English High Court
proceedings that have been commenced against
him by Stokoe Partnership Solicitors and said:
“if I have to implicate Nick / Patrick,
Decherts, Neil and the boss to get me out of
this I will.”
We understand that your
client’s reference to “the boss” is intended
to be a reference to the Ruler.
Please
can
your
client
explain
what
information, facts or evidence your client had
in mind and how he believes this implicates or
otherwise relates to the Ruler.
*****
(c)
your client said:
“what with the boss
refusing to cover my costs I wish quite
frankly I took the ENRC offer”.
*****
(e)
your client made a number of statements as to
his intended future conduct including:
*****
(ii)
“regrettably Jamie I would have to
say you know Nick and Patrick and
that Nick was retained long before
me and reported to at least in part
to Neil.”; and
(iii)
“I will stand my ground if I am
supported I will not if I am quite
frankly treated this way”.
Please can you [sic] client confirm whether any of
the above statements were intended to relate to the
Ruler or the Government of [RAK]; and, if ‘yes’,
please can your client explain what his intended
actions were/are in respect of each relevant
statement.
4. We note that some of your client’s messages to Mr
Buchanan appear to refer to our communications in respect
of your client’s request that our clients fund his legal
costs.
As we have discussed previously (e.g. in the
26
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 26 of 42
telephone calls between Mr Francis of our office and Mr
Fordham of your office on 15 and 17 July 2020):
our
clients rejected your client’s request and noted that the
legal proceedings against your client have nothing to do
with our clients; and, your client has confirmed that he
has never been instructed by our clients to do any work
in relation to Karam Al Sadeq, nor his lawyers, nor the
proceedings that have been brought against Neil Gerrard
and Dechert (amongst others).
(Docket Entry 6-6 at 2-3 (emphasis in original).)
Finally, Tsiattalou avers:
Since the issue of proceedings in the Al Sadeq
Litigation, [Tsiattalou], along with others involved in
the Al Sadeq Litigation, have received numerous emails
and text messages which appear to be targeted attempts to
access personal data. [Tsiattalou] believe[s] that these
attempts amount to phishing or spear-phishing; i.e.
communications which seek to trick the recipient into
clicking on a link to a website which itself contains
malicious software which is downloaded onto the
recipient’s
device.
Spear-phishing
is
a
more
sophisticated form of phishing where the communication
contains specific information, targeted at the recipient,
which makes it more likely that the recipient will click
on the link.
In particular, Stirling, who has published articles
about the Al Sadeq Litigation and has aided Mr. Al Sadeq
in raising awareness amongst human rights activists and
non-governmental organizations about his case, received
a phishing email from a Google Inc. (“Google”) account,
dutrouxjustine@gmail.com. That same email address sent
a phishing email containing Android Package files (“APK
files”) to Detained in Dubai. An analysis conducted of
those APK files showed that the APKs communicated with a
number of Ngrok server addresses. Stirling was also the
subject of approximately four (4) phishing attempts using
content hosted on Dropbox Inc. (“Dropbox”) sent to her
email address radha@radhastirling.com.
Approximately
twenty-six (26) phishing attempts were sent to the email
addresses of [certain lawyers involved in the Al Sadeq
Litigation] and Stirling from domains hosted by
Cloudflare Inc. (“Cloudflare”).
In addition, Google
Firebase accounts were used in approximately twenty (20)
phishing attempts targeting the email accounts of [those
27
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 27 of 42
lawyers], Stirling, and Tim Maltin, of Maltin Litigation
Support Group.
It is believed that these hacking
attempts were perpetuated by individuals associated with
the defendants in the Al Sadeq Litigation as part of an
attempt to interfere with Mr. Al Sadeq’s legal
representation.
At approximately 5:45 a.m. on November 5, 2020, just
days before a hearing in the High Court was scheduled in
the Robinson and Grayson Proceedings, hackers broke into
Stokoe’s cloud-based IT system which the firm uses to
conduct its day-to-day business.
By approximately
8:45 a.m., Stokoe’s IT provider was able to take measures
to protect Stokoe’s data and that of ten other law firms
potentially affected. Consequently, Stokoe was unable to
gain access to their IT system until November 9, 2020.
During the time that the IT system was down, Stokoe faced
significant impediments in carrying out their day-to-day
business activities, including the inability to receive
emails on their work addresses. Stokoe was informed by
its IT provider that after evaluating the password used
to orchestrate the hacking, it determined that the
hacking was linked specifically to Stokoe (rather than
any of the ten other law firms affected) and that
Stokoe’s financial material and banking data were
accessed.
Stokoe has been operating since 1994. As a firm,
[Stokoe] ha[s] never before 2020 been affected by such
cyberattacks. [Tsiattalou] believe[s] that these various
attempts to access Stokoe’s confidential information are
linked to its representation of Mr. Al Sadeq. Beyond the
confidential information that was sought from Stokoe as
described above, in Mr. Robinson’s affidavit, he stated
that he received the following requests for information:
a. Information about Ms. Stirling’s whereabouts,
telephone numbers, and banking information; and
b. Financial records and monthly transactional data
from the bank account of Maltin PR.
Mr. Al Sadeq’s Legal and Support Team has been, and
remains, a target of a complicated and coordinated
campaign by unknown perpetrators, within the context of
their involvement in the ongoing Al Sadeq Litigation.
28
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 28 of 42
Accordingly, upon information and belief, Del Rosso
and Vital Management have information, documents, and
material which would provide evidence necessary to
establish the identity of the ultimate perpetrators
behind the hacking campaign targeted against Mr. Al
Sadeq’s [l]egal [t]eam, and in turn, aid Mr. Al Sadeq in
proving the defendants’ ongoing pattern of human rights
abuses, their efforts to interfere with Mr. Al Sadeq’s
access to legal representation, and their willingness to
go to extreme lengths to conceal their unlawful conduct.
(Docket
Entry
4,
¶¶
43-48
(headings
and
internal
paragraph
numbering omitted).) Thus, Applicants seek to depose Del Rosso and
Vital Management.
with
those
(See Docket Entries 3-1, 3-2.)
depositions,
Applicants
seek
In connection
certain
documents
concerning Del Rosso’s and Vital Management’s interactions with
CyberRoot.
II.
(See id.)
Ancillary American Proceedings
Separately, in December 2020, Applicants filed a Section 1782
request in the United States District Court for the Northern
District
of
California,
“seek[ing]
the
issuance
of
subpoenas
directed at Google, Cloudflare, Ngrok, and Twilio SendGrid for
documents and information concerning the subscriber information and
IP information of accounts which were used in various phishing
attempts to hack Mr. Al Sadeq’s Legal and Support Team’s accounts
and confidential information.”
(Docket Entry 2 at 16 n.5.)
In
January 2021, the California Court directed Applicants to serve
their Section 1782 application and “supporting papers on the
[d]efendants
in
the
underlying
litigation,
including
Dechert
[Defendants], and any other interested party.” In re Al Sadeq, No.
29
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 29 of 42
3:20-mc-80224, Docket Entry 4 at 1 (N.D. Cal. Jan. 28, 2021).
Dechert Defendants responded with a “Notice of Non-Opposition,”
which “state[s] unequivocally that they had no involvement with, or
knowledge of, the purported ‘online hacking campaign’ that is
described
by
the
Applicant[s]
is
accordingly,
the
application.”
Applicant[s].
unrelated
Dechert
to
The
the
discovery
Dechert
[Defendants]
do
sought
by
[Defendants]
not
oppose
the
and,
the
Id., Docket Entry 6 at 1 (emphasis omitted).
Nevertheless, in a short order with limited analysis, the
California
Court
denied
the
application
on
the
grounds
that
Applicants failed to establish that the requested discovery “is for
use in a proceeding before a foreign tribunal,” In re Al Sadeq, No.
20mc80224, 2021 WL 2828810, at *3 (N.D. Cal. Mar. 30, 2021), appeal
filed, No. 21-16126 (9th Cir. July 6, 2021).
In this regard, the
California Court stated in full:
[Applicants] must next show that the discovery
sought is for use in a proceeding before a foreign
tribunal. To be “for use” in a foreign proceeding, the
information sought must be relevant. Rainsy v. Facebook,
Inc., 311 F. Supp. 3d 1101, 1110 (N.D. Cal. 2018).
Courts are permissive in construing whether discovery
sought is relevant to the claims and defenses at issue in
the foreign tribunal. In re Veiga, 746 F. Supp. 2d 8,
18-19 (D.D.C. 2010); see also Digital Shape Techs., Inc.
v. Glassdoor, Inc., 2016 WL 5930275, at *3 (N.D. Cal.
Oct. 12, 2016) (“The party issuing the subpoena has the
burden of demonstrating the relevance of the information
sought.”). [Applicants] describe in detail the ways in
which they believe they are being surveilled and hacking
attempts against them. (Dkt. 2.) [Applicants] assert
that these incursions are because of their involvement in
the Al Sadeq Litigation and the UK Litigation. However,
[Applicants] do not establish a link between the fact
30
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 30 of 42
that someone might be watching or attempting to hack them
and the particular claims at issue in the foreign
proceedings. The Court therefore cannot find that the
information sought, even if probative of hacking, would
be for use in the foreign proceedings, because it is
unclear how the information would be relevant to the
substance of the underlying claims. [Applicants] have
therefore failed to carry their burden as to this
requirement.
Id.
Additionally, in October 2020, Azima sued Del Rosso and Vital
Management in this Court for allegedly conspiring with, inter alia,
Gerrard,
Page,
and
Buchanan
to
hack
Azima’s
computer
data,
including emails (the “Azima/Del Rosso Litigation”). See generally
Azima, Docket Entry 1 (the “Azima Complaint”).
In particular, the
Azima Complaint asserts that Gerrard and Dechert hired Del Rosso
and Vital Management on RAKIA’s behalf to hack Azima’s data, which
Del Rosso and Vital Management accomplished through CyberRoot Risk
Advisory Private Limited (“CyberRoot”), a company in “India that
engages in illegal hacking.”
Id., Docket Entry 1, ¶ 2.
On
February 12, 2021, Azima (publically) disclosed the existence of
the instant litigation to Del Rosso and Vital Management.
e.g., id., Docket Entry 45, ¶¶ 7-13.
See,
On March 5, 2021, Del Rosso
and Vital Management responded to this disclosure by stating, in
the Azima/Del Rosso Litigation, the following:
On February 5, a former RAK official filed a new
discovery application under 28 U.S.C. § 1782 in this
District (the “Al Sadeq 1782 Application”), which, like
Azima’s pending discovery motion, seeks discovery from
[Del Rosso and Vital Management] related to the alleged
hack of Azima’s data. Although the underlying foreign
31
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 31 of 42
proceeding does not appear to have any relation to [Vital
Management], CyberRoot, or allegations of hacking, in
support of that application, the petitioners there
submitted a set of photographed copies of purported Kotak
Mahindra Bank statements (the “Statements”).
The
Statements show payments from [Vital Management] to
CyberRoot totaling an amount already alleged in the
[Azima] Complaint.
Id., Docket Entry 47 at 4.
Despite
the
Application’s
public
disclosure,
no
one
—
including Dechert Defendants, Del Rosso, Vital Management, or RAKIA
— has sought to oppose the Application in the instant litigation.
(See Docket Entries dated Feb. 5, 2021, to present.)
DISCUSSION
I. Section 1782
“Section 1782(a) provides that a federal district court ‘may
order’ a person ‘resid[ing]’ or ‘found’ in the district to give
testimony or produce documents ‘for use in a proceeding in a
foreign or international tribunal . . . upon the application of any
interested person.’”
Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241, 246 (2004) (brackets and ellipsis in original); see
also
In
re
Naranjo,
768
F.3d
332,
338
n.4
(4th
Cir.
2014)
(observing that, under Section 1782, “[a]ny ‘interested person’ may
apply to a district court to obtain documents or testimony from
another
person
‘for
use
international tribunal’”).
in
a
proceeding
in
a
foreign
or
“[Section 1782] reflects a long-term —
over 150-year — policy of Congress to facilitate cooperation with
foreign countries
by
‘provid[ing]
federal-court
assistance
32
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 32 of 42
in
gathering evidence for use in foreign tribunals.’”
Servotronics,
Inc. v. Boeing Co., 954 F.3d 209, 212–13 (4th Cir. 2020) (brackets
in original) (quoting Intel, 542 U.S. at 247).
As such, “Section 1782 affords the district courts ‘wide
discretion’ in responding to requests for assistance in proceedings
before foreign tribunals.”
Al Fayed v. United States, 210 F.3d
421, 424 (4th Cir. 2000).
“In exercising its discretion under
§ 1782, the district court should be guided by the statute’s twin
aims of providing efficient means of assistance to participants in
international litigation in our federal courts and encouraging
foreign countries by example to provide similar means of assistance
to our courts.”
United
States
Id. (internal quotation marks omitted).
Court
of
Appeals
for
the
Fourth
As the
Circuit
has
explained:
In deciding whether to grant the application and allow a
subpoena to issue under the statute, the district court
considers several factors identified in Intel[,] 542 U.S.
[at] 246 . . . . This initial application process often
occurs ex parte . . . . See, e.g., In re Republic of
Ecuador, No. C-10-80225 MISC CRB (EMC), 2010 WL 3702427,
at *2 (N.D.Cal. Sept. 15, 2010) (listing cases). Once
the application is granted and the subpoena is issued,
the subpoena target can move to quash it. Id.
In re Naranjo, 768 F.3d at 338 n.4.
In the referenced decision, the United States Supreme Court
identified certain “factors that bear consideration in ruling on a
§ 1782(a) request.”
Intel, 542 U.S. at 264.
Accordingly, once an
33
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 33 of 42
applicant
satisfies
the
statutory
requirements,
the
Court
considers:
(1) whether the person from whom discovery is sought is
a participant in the foreign proceedings, or instead, is
a nonparty outside the foreign tribunal’s jurisdiction
whose evidence is presumably more dependent on the
[C]ourt’s assistance; (2) the nature and character of the
foreign proceedings, and the receptivity of the foreign
body involved to United States judicial assistance;
(3) whether the application attempts to circumvent
foreign proof-gathering restrictions or other policies of
a foreign country or the United States; and (4) whether
the requests are unduly intrusive or burdensome [and thus
should be “trimmed” or rejected outright, id. at 265].
In re Peruvian Sporting Goods S.A.C., No. 18-mc-91220, 2018 WL
7047645, at *3 (D. Mass. Dec. 7, 2018) (citing Intel, 542 U.S. at
264-65).
II. Analysis
As a preliminary matter, the Court properly may proceed ex
parte at this juncture, with the understanding that, if “the
application is granted and the subpoena is issued, the subpoena
target can move to quash it,” In re Naranjo, 768 F.3d at 338 n.4;
see also In re Qwest Commc’ns Int’l Inc., No. 3:08mc93, 2008 WL
2741111, at *5 (W.D.N.C. July 10, 2008) (“Issuance of the subpoena
is but a first step in this process, and allows for the subpoenaed
party to challenge the subpoena under Rule 45, Federal Rules of
Civil Procedure, or appeal th[e magistrate judge’s authorization
o]rder to the district court upon a showing that its issuance was
clearly erroneous or contrary to law.”).
Moreover, here the
subpoena targets have known of the Application for an extended
34
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 34 of 42
period, see Azima, Docket Entry 45, ¶¶ 7-13, but have not sought to
oppose the issuance of the requested subpoenas (see Docket Entries
dated Feb. 5, 2021, to present). Accordingly, the Court will grant
Applicants’ request to proceed ex parte.
Turning to the statutory requirements, the Court first finds
that Applicants qualify as “interested parties,” given their status
as claimants in the Foreign Proceedings.
See, e.g., In re Oak Tr.,
No. 5:21mc7, 2021 WL 1390014, at *2 (M.D. Fla. Apr. 13, 2021)
(ruling that “applicants are ‘interested parties’ because each
expects to be a claimant in the anticipated U.K. proceeding”). The
Court further finds that Applicants seek testimony and documents
from an individual and entity residing in this district, as Section
1782 requires, see Intel, 542 U.S. at 246.
1, 3-2.)
(See Docket Entries 3-
Finally, the Court finds that Applicants seek this
evidence “for use” in the Foreign Proceedings.23
As to that final statutory requirement, it bears noting that
the “for use” factor imposes only a “de minimis” burden upon a
Section 1782 applicant.
(collecting cases).
Vital
Management
In re Veiga, 746 F. Supp. 2d at 18
Here, Applicants assert that “Del Rosso and
are
in
possession
of
relevant
documents,
materials, and information which will aid in determining the
23
The California Court’s contrary determination on
Applicants’ request to subpoena certain technology companies does
not alter that conclusion, particularly given, inter alia, the
different targets and information requested.
35
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 35 of 42
identity of the perpetrators behind the hacking campaign targeting
Mr. Al Sadeq’s Legal and Support Team and lend support to Mr. Al
Sadeq’s claims of human rights abuses against the defendants.”
(Docket Entry 2 at 20.) As support for that contention, the record
reflects that, on Del Rosso’s own admission, Dechert hired Del
Rosso
and
Vital
Management
in
2014
“to
investigate
assets
potentially stolen from [RAK’s] Government,” a task that included
examining “potential frauds committed by, amongst others, [Dr.]
Massaad” (Docket Entry 4-4, ¶ 4), at the direction of Dechert,
Gerrard, Buchanan, and other RAK governmental representatives.
(See, e.g., id. at ¶¶ 4-8.)24 The record further reflects that, per
RAKIA’s claims in the Azima Litigation, Al Sadeq participated in
these alleged frauds with Dr. Massaad and Azima.
Docket Entry 4-2, ¶¶ 8, 168-183.)
Litigation
regarding
this
(See, e.g.,
RAKIA’s evidence in the Azima
alleged
fraud
rested
confidential emails, obtained through hacking.
on
Azima’s
(See, e.g., id.,
¶ 384.)
RAKIA, Gerrard, and Del Rosso asserted that Page located
Azima’s hacked emails on the Internet, which material Gerrard then
engaged Del Rosso and Vital Management to download.
(See, e.g.,
id., ¶¶ 51-53, 336-343.11; Docket Entry 4-4, ¶¶ 5-18.)
In the
24 In his trial testimony in the Azima Litigation, Del Rosso
indicated that his participation in RAK’s fraud investigation
remained ongoing.
(See Docket Entry 4-5 at 27 (“[S]ince 2014,
August 2014, I’ve been involved somewhere in this massive
investigation.”).)
36
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 36 of 42
Azima Litigation, Del Rosso further maintained that he “did not
hack Mr Azima’s computers, cause him to be hacked or know who
hacked him” and also “did not upload his data to the internet,
cause his data to be uploaded or know who did upload his data.”
(Docket
Entry
4-4,
¶
20.)
However,
subsequently
discovered
evidence in the Azima Litigation indicated that Del Rosso allegedly
instructed an Indian company, CyberRoot, to hack Azima’s data
beginning in June or July of 2015.
¶¶ 130, 132.
See Azima, Docket Entry 49-1,
Del Rosso responded to this evidence by admitting
“that he had engaged CyberRoot to carry out work on RAKIA’s behalf;
and had arranged the payment to CyberRoot of the $1 million.
But
he said that that was for different work which had nothing to do
with Mr Azima.”
Id., Docket Entry 49-1, ¶ 133.
Like Azima, members of Al Sadeq’s Legal and Support Team have
received
multiple
spear-phishing
and
phishing
emails
since
disclosure of their involvement in the Al Sadeq Litigation.
(See,
e.g., Docket Entry 4, ¶¶ 43-44; Docket Entry 4-2, ¶¶ 295-300.)
Around the same time, private investigators received instructions
to, inter alia, obtain these individuals’ confidential information,
including bank account information, and track at least some of
their travel to Dubai — travel associated with the Al Sadeq
Litigation.
(See, e.g., Docket Entry 4, ¶¶ 14-15, 33-38, 46.)
Notably, the financial information sought from Stokoe overlaps with
its engagement in the Al Sadeq Litigation and addresses information
37
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 37 of 42
that Dechert Defendants have sought in the Al Sadeq Litigation,
namely “who was funding that litigation” (id., ¶ 14).
¶ 34.)
(See id.,
Moreover, Grayson admitted that his inquiries to Robinson
regarding Tsiattalou’s travel to Dubai and the funding source for
the Al Sadeq Litigation originated with Del Rosso (see Docket Entry
6-3 at 3-5), with whom Grayson had an ongoing “general consulting
arrangement . . . to provide general business intelligence services
and advice” (id. at 5; see also Docket Entry 6-4 (nondisclosure
agreement
between
Vital
Management
and
Grayson)).
Page
has
similarly implicated Del Rosso (as well as Dechert, Gerrard, the
Ruler,
and
Grayson)
Proceeding.
in
the
disputed
conduct
in
the
Grayson
(See Docket Entry 6-6 at 2-3.)
Applicants seek production of documents related to Del Rosso’s
and Vital Management’s work with CyberRoot for the period from July
1, 2015, through September 30, 2017.
Docket Entry 3-2 at 7-8.)
(Docket Entry 3-1 at 7-8;
This time frame closely correlates to
the period in which Vital Management paid CyberRoot $1 million
(see, e.g., Docket Entry 4-7 at 2-10) for either hacking Azima’s
confidential information, see Azima, Docket Entry 49-1, ¶ 132, or
undertaking some other efforts on RAKIA’s behalf, see id., Docket
Entry 49-1, ¶ 133, during Del Rosso’s investigation into fraudulent
activities allegedly involving Al Sadeq, an investigation that
continued
through
at
least
the
initiation
of
the
Al
Sadeq
Litigation (see Docket Entry 4, ¶ 25; Docket Entry 4-5 at 27).
38
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 38 of 42
Applicants further seek to depose Del Rosso and Vital Management,
focusing on their work with CyberRoot for “the period from January
1, 2015 to the date of [the] deposition.”
(Docket Entry 3-1 at 5;
Docket Entry 3-2 at 5.)
Information
regarding
Del
Rosso’s
and
Vital
Management’s
interactions with CyberRoot during this period bears relevance to
Applicants’ claims in the Foreign Proceedings.
For example, the
timing and method by which RAKIA obtained Azima’s confidential
emails, which allegedly implicated Al Sadeq in the asserted fraud,
appear relevant to Al Sadeq’s contention that RAKIA’s claims stem
from political motives.
Moreover, the methods employed in RAK’s
“massive investigation” (Docket Entry 4-5 at 27) into Dr. Massaad,
Azima, Mikadze, and Al Sadeq relate to both Al Sadeq’s claims in
the
Al
Sadeq
Litigation
and
to
Stokoe’s
Hacking
Claims,
particularly because Page (to whom Del Rosso, Gerrard, and RAKIA
attribute the discovery of Azima’s hacked materials online) has
suggested
that
Del
Rosso,
Gerrard,
and
the
Ruler
bear
responsibility for at least some of the conduct at issue in the
Grayson
Proceeding.
circumstantial
Further,
evidence
linking
given
Del
both
Rosso
the
and
direct
the
Al
and
Sadeq
Litigation with the hacking attempts, cyberattacks, and illicit
investigations
ascertaining
regarding
whether
Del
Stokoe
Rosso
and
and
associated
Vital
individuals,
Management
enlisted
CyberRoot to hack individuals involved in scrutinizing alleged
39
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 39 of 42
human rights violations by RAK and its Ruler — violations involving
both
Azima’s
alleged
co-conspirator
and,
as
in
the
Azima
Litigation, Dechert Defendants — qualifies as relevant to both the
Al Sadeq Litigation and Grayson Proceeding. Accordingly, the Court
finds that Applicants have satisfied their burden of establishing
that the requested discovery satisfies the “for use” requirement of
Section 1782(a).
Turning to the discretionary Intel factors, Del Rosso and
Vital Managements are not parties in the Foreign Proceedings, which
weighs in favor of granting Section 1782 aid.
See, e.g., Intel,
542 U.S. at 264 (“[N]onparticipants in the foreign proceeding may
be outside the foreign tribunal’s jurisdictional reach; hence,
their evidence, available in the United States, may be unobtainable
absent § 1782(a) aid.”); In re Oak Tr., 2021 WL 1390014, at *2
(granting Section 1782 request where subpoena target “will not be
a
party
in
the
anticipated
U.K.
proceeding
and,
thus,
[is]
potentially beyond the jurisdiction of the High Court of England
and Wales to compel production”).
Moreover, “there is no evidence
[that] the court in the United Kingdom would be unreceptive to the
evidence” that Applicants seek. In re Oak Tr., 2021 WL 1390014, at
*2.
To the contrary, the UK appellate court has already permitted
introduction of evidence regarding Del Rosso’s interactions with
CyberRoot, including a new witness statement from Del Rosso, and
noted the need for further testimony from Del Rosso on this issue
40
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 40 of 42
in the Azima Litigation.
143.
See Azima, Docket Entry 49-1, ¶¶ 130-34,
Similarly, no indication exists that Applicants seek the
requested
evidence
in
“an
attempt
to
circumvent
foreign
proof-gathering restrictions or other policies of a foreign country
or the United States,” Intel, 542 U.S. at 265.
requested
discovery,
which
focuses
on
Finally, the
payments
to
CyberRoot,
communications with CyberRoot, and CyberRoot’s work for Del Rosso
and Vital Management (see Docket Entry 3-1 at 7-8; Docket Entry 3-2
at 7-8), appears narrowly tailored and reasonable.25
As such, the
discretionary Intel factors favor Section 1782 aid.
Under
the
circumstances,
requested discovery.
the
Court
will
authorize
the
See Al Fayed, 210 F.3d at 424 (noting that,
“[i]n exercising [their] discretion under [Section] 1782,” courts
should
consider
Section
1782’s
aims
of
providing
effective
assistance to foreign litigants and encouraging by example similar
assistance from foreign courts).
CONCLUSION
Applicants
have
satisfied
the
Section
1782
statutory
requirements and each of the discretionary Intel factors weighs in
favor of Section 1782 relief.
25 This finding “is made without prejudice to [Del Rosso and
Vital Management] later contesting the requested discovery by
seeking a protective order or any other relief consistent with the
Federal Rules of Civil Procedure.” In re Oak Tr., 2021 WL 1390014,
at *2 n.1.
41
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 41 of 42
IT IS THEREFORE ORDERED that the Application (Docket Entry 1)
is GRANTED. Applicants may serve on Del Rosso and Vital Management
the subpoenas attached to the Merritt Declaration as Exhibit A and
Exhibit B (Docket Entries 3-1, 3-2), along with a copy of this
Memorandum Opinion and the other filings in this matter (Docket
Entries 1 to 6-6).
In accordance with the spirit of Federal Rule
of Civil Procedure 45(a)(4), Applicants shall also serve copies of
the subpoenas and this Memorandum Opinion on Dechert Defendants and
the defendants in the Grayson Proceeding.
IT IS FURTHER ORDERED that Del Rosso and Vital Management
shall respond to the subpoenas consistent with the Federal Rules of
Civil Procedure and this Court’s Local Rules.
This 18th day of October, 2021.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
42
Case 1:21-mc-00006-UA-LPA Document 7 Filed 10/18/21 Page 42 of 42
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