UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UGO COLELLA, et al., :
:
Plaintiffs and Counter-Defendants, : Civil Action No.: 20-813 (RC)
:
v. : Re Document Nos.: 49, 54, 58, 70
:
THOMAS T. ANDROUS, et al., :
:
Defendants and Counter-Plaintiffs. :
MEMORANDUM OPINION
DENYING PLAINTIFFS’/COUNTER-DEFENDANTS’ MOTION TO DISMISS; DENYING
PLAINTIFFS’/COUNTER-DEFENDANTS’ MOTION FOR SANCTIONS; GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’/COUNTER-DEFENDANTS’ MOTION TO COMPEL DISCOVERY;
DENYING PLAINTIFFS’/COUNTER-DEFENDANTS’ SUPPLEMENTAL MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
I. INTRODUCTION
This opinion addresses a litany of motions filed by Plaintiffs/Counter-Defendants Ugo
Colella and John J. Zefutie, Jr. (“Counter-Defendants”) in the course of ongoing litigation
between Counter-Defendants and Defendants/Counter-Plaintiffs Thomas T. Androus, 2208
Russell Road LLC, and 2208 RR AVA, LLC (“Androus” 1 or “Counter-Plaintiffs”). Specifically,
Counter-Defendants move to dismiss Counter-Plaintiffs’ legal malpractice counterclaim for lack
of standing, move for sanctions pursuant to Rule 11, and move to compel discovery of certain
documents which Counter-Plaintiffs contend are attorney-client privileged or shielded by the
attorney work product doctrine. For the reasons discussed below, Counter-Defendants’ motion
to dismiss is denied, their motion for sanctions is denied, their motion to compel discovery is
1
For simplicity, the Court at times refers to Counter-Plaintiffs as “Androus” in light of
the fact that Androus is the “sole and controlling member” of the named LLC defendants. See
Colella v. Androus, No. 20-cv-813, 2022 WL 888182, at *1 (D.D.C. Mar. 25, 2022).
granted in part and denied in part, and their supplemental motion to compel production of
documents is denied.
II. BACKGROUND
This case initially involved only a dispute over legal fees, see Colella v. Androus
(“Colella I”), 518 F. Supp. 3d 439, 442–44 (D.D.C. 2021) (detailing the backdrop of the legal fee
dispute), but has since morphed (by counterclaim) to include a legal malpractice claim as well,
Colella v. Androus (“Colella II”), No. 20-cv-813, 2022 WL 888182, at *1–3 (D.D.C. Mar. 25,
2022) (describing the foundation of the legal malpractice claim). Because the Court has
previously described the factual and procedural background of both the legal fee dispute and the
malpractice claim, it will not set forth a detailed rendition of the same here. Instead, it will
provide only a brief summary of the relevant facts and the procedural developments that have
taken place since its earlier opinions. Additionally, the Court will provide further, relevant
factual context in the sections of the opinion discussing the discrete motions at issue.
As the Court has previously explained, Counter-Defendants “Ugo Colella and John
Zefutie represented [Counter-Plaintiffs] Thomas Androus and two limited liability companies of
which Androus was the sole and controlling member—2208 Russell Road, LLC and 2208 RR
AVA, LLC—in a lawsuit against a construction contractor in Virginia state court.” Colella II,
2022 WL 888182, at *1. The case went to trial, the result of which was a $2.4 million jury
verdict against Androus and his LLCs. Id. at *3. Androus—represented by new counsel—
unsuccessfully appealed the jury verdict. See id.
Following the trial in Virginia, Androus’s trial counsel—Colella and Zefutie—filed an
action in this court to recover their unpaid “fees and litigation expenses.” Colella I, 518 F. Supp.
3d at 443; see also Compl., ECF No. 1. In response, Counter-Plaintiffs filed a counterclaim
2
alleging that Counter-Defendants had committed legal malpractice. See Colella II, 2022 WL
888182, at *3; see also Countercl., ECF No. 26. The counterclaim sought to recover “damages
in the form of the adverse trial judgment,” which, after post-judgment interest amounted to
approximately $2,600,000; “‘overpayment’ of $300,000 in attorneys’ fees for subpar services;
appellate fees to remedy the trial judgment; and the cost of the required bond pending appeal.”
See Colella II, 2022 WL 888182, at *3 (cleaned up). Counter-Defendants subsequently filed a
motion to dismiss, arguing that the counterclaim failed to state a claim upon which relief could
be granted and that Counter-Plaintiffs’ claims were barred by the statute of limitations, the
doctrine of in pari delicto, and judicial estoppel. See id. at *4. The Court disagreed and,
accordingly, denied the motion. See id. at *13. The parties then engaged in extended fact and
expert discovery.
Following the close of discovery, Counter-Defendants filed another motion to dismiss.
See generally Pls.’/Counter-Defs.’ Mem. Supp. Mot. Dismiss (“Counter-Defs.’ Mot. to
Dismiss”), ECF No. 58-1. Generally speaking, the motion argues that Counter-Plaintiffs lack
standing to bring a counterclaim for malpractice because they have failed to produce evidence
showing that they suffered an injury as a result of Counter-Defendants’ alleged professional
negligence. See id. at 1–4. The motion therefore argues that the Court lacks subject matter
jurisdiction to hear the claim. See id. at 4. The motion is fully briefed. See Defs.’/Counter-Pls.’
Mem. P. & A. Opp’n Mot. Dismiss (“Counter-Pls.’ Opp’n Mot. to Dismiss”), ECF No. 67;
Pls.’/Counter-Defs.’ Reply Mem. Supp. Mot. Dismiss (“Counter-Defs.’ Reply Mot. to Dismiss”),
ECF No. 69.
Not content to file just one motion seeking dismissal of the counterclaim, Counter-
Defendants also filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 11. See
3
generally Pls.’/Counter-Defs.’ Mem. P. & A. Supp. Mot. Sanctions (“Counter-Defs.’ Rule 11
Mot.”), ECF No. 70-1. In that motion, Counter-Defendants allege that discovery has revealed
that the counterclaim is so devoid of a legal and factual foundation that it should never have been
brought in the first place. See id. at 1–2. Thus, they argue that “dismissal of the Counterclaim”
is warranted as a sanction. See id. at 39. That motion, too, is fully briefed and ripe for decision.
See Defs.’/Counter-Pls.’ Mem. P. & A. Opp’n Mot. Sanctions (“Counter-Pls.’ Opp’n Rule 11
Mot.”), ECF No. 72; Pls.’/Counter-Defs.’ Reply Mem. P. & A. Supp. Mot. Sanctions (“Counter-
Defs.’ Reply Rule 11 Mot.”), ECF No. 73.
Finally, Counter-Defendants have moved to compel production of certain records that
Counter-Plaintiffs contend are protected by the attorney-client privilege or attorney work product
doctrine. See Pls.’/Counter-Defs.’ Mem. P. & A. Supp. Pls.’/Counter-Defs.’ Mot. Compel
Discovery (“Counter-Defs.’ Mot. Compel”), ECF No. 49-1; see also Pls.’/Counter-Defs.’ Suppl.
Mem. P. & A. Supp. Pls.’/Counter-Defs.’ Mot. Compel (“Counter-Defs.’ Suppl. Mot. Compel”),
ECF No. 54. The Court has held multiple hearings on this issue, and the parties have narrowed
the universe of contested documents. To resolve the parties’ dispute regarding the remaining
documents, the Court determined that it is necessary to conduct an in camera inspection of the
challenged records.
III. ANALYSIS
A. Motion to Dismiss for Lack of Standing
Pursuant to Federal Rule of Civil Procedure 12(b)(1), Counter-Defendants first move to
dismiss the counterclaim for lack of subject matter jurisdiction on the ground that Counter-
Plaintiffs lack standing. At a high level of generality, Counter-Defendants argue that neither
Androus nor the named LLCs can show that they suffered an injury in fact as a result of Counter-
4
Defendants’ alleged malpractice because neither Androus nor the named LLCs have produced
evidence showing that they, themselves paid any portion of the adverse jury award, the attorneys’
fees owed to Counter-Defendants’ or their former law firm, the attorneys’ fees owed to appellate
counsel, or the appeal bond. See Counter-Defs.’ Mot. to Dismiss at 11–16.
For their part, Counter-Plaintiffs contend that it does not matter whether Androus, the
named LLCs, or a third-party paid those sums. See Counter-Pls.’ Opp’n Mot. to Dismiss at 2.
To put this argument into context, it is helpful to note that—in addition to the two LLCs named
in the present suit—Androus owns, operates, and is the sole member of at least fifteen other
limited liability companies. See Ex. A, Counter-Pls.’ Opp’n Mot. to Dismiss at 5, ECF No. 67-1;
see also Counter-Pls.’ Opp’n Mot. to Dismiss at 9 n.7. Two of those other limited liability
companies are Larnaca Company, LLC and Larnaca Properties, LLC (collectively, the “Larnaca
LLCs”). See Counter-Pls.’ Opp’n Mot. to Dismiss at 9 n.7; see also Decl. of Thomas T. Androus
(“Androus Decl.”) at 4, ECF No. 57. And there is evidence in the record that suggests that
Androus used money from at least one of the Larnaca LLCs to pay for things such as Counter-
Defendants’ legal fees. See, e.g., Androus Decl. at 4. In light of that context, Androus argues
that, for purposes of standing, it is immaterial whether he, himself paid the amounts he seeks as
damages or whether he “had one or more of his single-member LLCs pay some or all” of the
amounts owed. See Counter-Pls.’ Opp’n Mot. to Dismiss at 2, 4–9.
1. Legal Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal law
empowers federal district courts to hear only certain kinds of cases, and it is “presumed that a
cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
5
375, 377 (1994). A court that lacks jurisdiction must dismiss the action. Fed. R. Civ. P.
12(b)(1), 12(h)(3).
When deciding a Rule 12(b)(1) motion, the court generally must “assume the truth of all
material factual allegations in the complaint and construe the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived from the facts alleged, and upon such
facts determine [the] jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011) (internal quotation marks omitted). However, when (as here) a defendant
challenges the “factual basis” of the court’s subject matter jurisdiction, “the court may not deny
the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and
disputed by the defendant.” Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018) (citation
omitted). Instead, the court “must go beyond the pleadings and resolve any disputed issue of
fact . . . necessary to a ruling upon the motion to dismiss.” Id. (quoting Phoenix Consulting v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)); see also Herbert v. Nat’l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992); Saline Parents v. Garland, 630 F. Supp. 3d 201, 205
(D.D.C. 2022).
2. Standing
Article III of the Constitution limits the “judicial Power” of federal courts to “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. “[T]here is no justiciable case or controversy
unless the plaintiff has standing.” West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017). As the
Supreme Court has interpreted this requirement, “the irreducible constitutional minimum of
standing contains three elements”: (1) the plaintiff must have suffered an “injury in fact” that is
“concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2) there
must exist “a causal connection between the injury and the conduct complained of”; and (3) it
6
must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks
omitted). “The burden of establishing these elements falls on the party invoking federal
jurisdiction.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). That said, the
means by which a plaintiff may carry that burden “varies” depending on the stage of the
litigation. Nat’l Whistleblower Ctr. v. Dep’t of Health & Hum. Servs., 839 F. Supp. 2d 40, 46
(D.D.C. 2012); see Lujan, 504 U.S. at 561. At the pleading stage, the plaintiff need only “allege
facts demonstrating [that] each element” is met. Friends of Animals, 828 F.3d at 992; see also
Lujan, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice . . . .”). In contrast, at the summary judgment stage,
“the plaintiff can no longer rest on . . . mere allegations, but must set forth by affidavit or other
evidence specific facts which for purposes of . . . summary judgment . . . will be taken to be
true.” Lujan, 504 U.S. at 561 (cleaned up).
Here, Counter-Defendants contend that, in light of the evidence revealed through
discovery, Counter-Plaintiffs have failed to establish that they suffered any injury as a result of
Counter-Defendants’ alleged malpractice. The thrust of Counter-Defendants’ argument is that,
because Androus has not provided any evidence to show that he, himself paid the adverse
judgment, the attorneys’ fees, or the cost of the appeal bond, neither Androus nor the named-
LLCs may claim they suffered an injury in fact. See Counter-Defs.’ Mot. to Dismiss at 13
(arguing that “Androus [has not] produced any documents that would prove that he actually
personally ‘paid,’ and therefore incurred” legal fees, the cost of the appeal bond or the cost of
the adverse judgment); Counter-Defs.’ Reply Mot. to Dismiss at 2 (“Androus does not dispute,
and therefore confirms, that neither he nor [the named LLCs] paid a penny out of pocket for any
7
of the damages they seek in this case. Because Androus’s Counterclaim only seeks money
damages as reimbursement for alleged out-of-pocket losses, and because Androus incurred no
such losses, he has no standing to claim damages which is an essential element of his legal
malpractice Counterclaim.” (citations omitted)). In other words, Counter-Defendants argue that,
because there is no evidence that Androus personally paid any of those categories of debts, there
is no evidence that Counter-Plaintiffs incurred or suffered any damages. 2
Counter-Plaintiffs respond by invoking the so-called “collateral source rule.” The
collateral source rule provides that “an injured person may usually recover in full from a
wrongdoer regardless of anything he may get from a collateral source unconnected with the
wrongdoer.” In re U.S. Off. of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 65 (D.C. Cir.
2019) (per curiam) (quoting Kassman v. Am. Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1976) (per
curiam)); see also Jacobs v. H. L. Rust Co., 353 A.2d 6, 7 (D.C. 1976) (“The collateral source
rule provides that when a tort plaintiff’s items of damage are reimbursed by a third party who is
independent of the wrongdoer, the plaintiff may still seek full compensation from the tortfeasor
even though the effect may be a double recovery.”). 3 The purpose underlying the rule is to
2
Both parties frequently conflate the concept of damages—a necessary element of a legal
malpractice cause of action, see, e.g., Martin v. Ross, 6 A.3d 860, 862 (D.C. 2010)—and Article
III injury. Although there is often “overlap” between the two concepts, “they are not one and the
same.” Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 462 (6th Cir. 2019).
3
The parties still have not briefed the question of whether District of Columbia or
Virginia law governs the malpractice claim. See Colella II, 2022 WL 888182, at *4 n.1
(explaining that the parties retain responsibility for briefing any choice-of-law issues). They
agree, however, that the Court need not conclusively determine whether D.C. or Virginia law
governs the substantive tort claim for purposes of resolving the motion to dismiss. See Counter-
Defs.’ Mot. to Dismiss at 12 n.5 (“[T]here is no choice-of-law issue in connection with this Rule
12(b)(1) motion because damage is an essential element of a legal malpractice claim whether
brought under District of Columbia or Virginia law.”); Counter-Pls.’ Opp’n Mot. to Dismiss at 5
(“The result is the same, irrespective of whether the substantive law of Virginia or the District of
Columbia ultimately applies.”).
8
“prevent[] the victim’s benefits from becoming the tortfeasor’s windfall.” In re U.S. Off. of Pers.
Mgmt. Data Sec. Breach Litig., 928 F.3d at 65; see also Atlanta Channel, Inc. v. Solomon, 583 F.
Supp. 3d 174, 214 (D.D.C. 2022) (“The rule seeks to avoid providing the defendant a ‘windfall’
by permitting him, through no action of his own, to avoid paying the full extent of damages he
caused.”). Applied here, Counter-Plaintiffs’ argument goes, the rule would permit them to
recover as damages the costs they incurred as a result of Counter-Defendants’ malpractice,
regardless of whether those costs were ultimately paid by Androus, the named-LLCs, or a third
party (namely, the Larnaca LLCs). See Counter-Pls.’ Opp’n Mot. to Dismiss at 5–9.
Counter-Plaintiff’s position draws support from the Fifth Circuit’s decision in Rideau v.
Keller Independent School District, 819 F.3d 155 (5th Cir. 2016). In Rideau, the plaintiffs
brought claims on behalf of their child, who had been abused by his special education teacher.
Id. at 157–58. Among other things, the plaintiffs sought to recover “past medical expenses
and . . . future home care expenses.” Id. at 161. Relevantly, the school district argued that the
plaintiffs lacked standing to seek such damages because neither the parents nor the child had
paid or would pay those expenses. See id. Instead, the “expenses ha[d] been and w[ould] be
paid out of” a trust established in the child’s name. Id.
The Fifth Circuit had no trouble concluding that, despite the fact that the trust had paid
the expenses at issue, the plaintiffs had standing to recover both past and future medical
expenses. See id. As to the past expenses, the court explained that, because the parents (not the
trust) were “legally responsible” for their child’s medical expenses, they had suffered “an
economic injury for Article III standing purposes.” Id. As for future medical expenses, the court
held that the child had standing to recover for “economic harm” occurring later in life that
stemmed from his injuries. Id. For both categories of economic injuries, the court explained that
9
“the existence of a potential third-party payor in the form of the [t]rust” does not “deprive” the
plaintiffs of “standing that would otherwise exist as a result of incurring” the financial
obligations. See id.; see also id. at 162 (“For purposes of establishing an Article III injury, the
existence of the trust should not create any more of an impediment than the existence of
insurance.”).
It is easy to see the parallels between Rideau and this case. Here, as in Rideau, Androus
has provided evidence showing that he incurred large financial obligations as a result of Counter-
Defendants’ alleged malpractice. For example, the record demonstrates—and Counter-
Defendants do not dispute—that a Virginia jury rendered a multi-million-dollar verdict against
Androus and the named LLCs. See generally Ex. 1, Counter-Defs.’ Rule 11 Mot., ECF No. 70-
3. The record also contains evidence tending to suggest that that judgment has been “fully
satisfied.” 4 See Ex. A, Mot. for Leave to File Suppl. Decl., Suppl. Decl. of Thomas T. Androus
(“Suppl. Androus Decl.”) at 1–2, ECF No. 61. Although the record does not contain evidence
conclusively establishing how the judgment was paid or the individual or entity that paid it, there
is at least some evidence that the judgment was paid by one of the Larnaca LLCs. See id. As
Rideau aptly illustrates, that fact does not deprive Androus—as the person legally obligated to
pay the judgment—of Article III standing. See Rideau, 819 F.3d at 161 (“[T]he existence of a
potential third-party payor . . . does not deprive the [plaintiffs] of standing that would otherwise
exist as a result of incurring that obligation.”); see also Tamposi v. Denby, 136 F. Supp. 3d 77,
4
Androus’s declaration states that he “produced a Certificate of Satisfaction showing that
the judgment entered against ‘2208 Russell Road, LLC, Thomas T. Androus a/k/a Theo Androus
and 2208 RR AVA, LLC’ in the amount of $2,676,757.37 was ‘fully paid and discharged,’” see
Ex. A, Mot. for Leave to File Suppl. Decl., Suppl. Decl. of Thomas T. Androus (“Suppl.
Androus Decl.”) at 1, ECF No. 61, but the Certificate of Satisfaction is not, itself, in the record
before the Court. That said, Counter-Defendants do not appear to contest the existence or
substance of the Certificate.
10
119–20 (D. Mass. 2015) (holding that plaintiff had standing to bring legal malpractice claim
despite the fact that “her legal-malpractice insurance and her law firms . . . combined to cover all
of the fees and settlement costs for which she seeks reimbursement”).
Separately, Counter-Defendants themselves acknowledge that, in 2019, Culhane
Meadows (the law firm at which they were previously employed as partners) received $267,750
in connection with their representation of Androus and the named LLCs. See Ex. A, Counter-
Defs.’ Mot. to Dismiss at ¶ 6, ECF No. 58-2. To be sure, the evidence tends to show the
payments to Culhane Meadows came from one of the Larnaca LLCs. See Exs. 4, 5, Decl. of Ugo
Colella, ECF Nos. 58-6, 58-7. But again, that does not deprive Androus—as the person legally
responsible for paying those fees—of Article III standing. See Rideau, 819 F.3d at 161; cf. also
Knight v. Furlow, 553 A.2d 1232, 1235 (D.C. 1989) (“We conclude that attorney’s fees and costs
expended as a result of an attorney’s alleged malpractice constitute legally cognizable damages
for purposes of stating a claim for such malpractice.”).
For purposes of resolving the instant motion, these findings are sufficient to conclude that
Counter-Plaintiffs have, at this stage, put forth sufficient evidence of monetary injury to pursue
their malpractice claim. After all, “[e]conomic harm . . . clearly constitutes an injury-in-fact.”
Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017). And even just “[a] dollar of
economic harm is still an injury-in-fact for standing purposes.” Id. Because there is evidence in
the record from which a reasonable jury could conclude that Counter-Defendants’ alleged
malpractice resulted in at least a dollar of economic injury to Androus, Counter-Defendants’
motion to dismiss for lack of standing is denied.
11
B. Motion for Rule 11 Sanctions
As an “alternative” to their motion to dismiss, Counter-Defendants have filed a motion
for sanctions under Rule 11. See Counter-Defs.’ Rule 11 Mot. at 3 n.3. Counter-Defendants
contend that the counterclaim is “frivolous” and that discovery has revealed that it has been so
from the start. See id. at 1. Accordingly, they seek dismissal of the counterclaim and any other
“sanctions that the Court deems just and appropriate.” Id. at 39. The motion is denied.
Federal Rule of Civil Procedure 11(b) provides, in relevant part, that by presenting a
pleading, written motion, or other paper to the court, “an attorney . . . certifies that to the best of
the person’s knowledge, information, and belief, formed after” a reasonable inquiry:
(1) [the pleading, motion, or other paper] is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). If the court determines that any portion of that rule has been violated, Rule
11(c) states that “the court may impose an appropriate sanction on any attorney, law firm, or
party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c). Rule 11 is
thus “designed to ensure that allegations made in filings are supported by a sufficient factual
predicate at the time that the claims are asserted.” Jordan v. U.S. Dep’t of Lab., 273 F. Supp. 3d
214, 240–41 (D.D.C. 2017) (internal quotation marks omitted). In that sense, the rule is a means
of “protect[ing] the court from frivolous and baseless filings that are not well grounded, legally
12
untenable, or brought with the purpose of vexatiously multiplying the proceedings.” Cobell v.
Norton, 211 F.R.D. 7, 10 (D.D.C. 2002) (quoting Cobell v. Norton, 157 F. Supp. 2d 82, 86 n.8
(D.D.C. 2001)).
“Courts do not impose Rule 11 sanctions lightly; such sanctions are an extreme
punishment for filing pleadings that frustrate judicial proceedings.” Jordan, 273 F. Supp. 3d at
241 In determining whether to issue sanctions, courts consider “(1) whether each presenting
attorney ‘conducted a reasonable inquiry,’ (2) whether each presenting attorney ‘determined that
[the] papers filed with the court are well grounded in fact [and] legally tenable,’ and (3) whether
the papers were ‘interposed for any improper purpose.’” Id. (alterations in original) (quoting
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). Rule 11 gives the court
“discretion to decide [both] whether a . . . violation has occurred and what sanctions should be
imposed if there has been [a] violation.” Nat’l Cas. Ins. Co. v. Solomon, 502 F. Supp. 3d 401,
410 (D.D.C. 2020) (quoting Long v. Dep’t of Just., 207 F.R.D. 4, 6 (D.D.C. 2002)). Although
“[d]ismissal is a legitimate sanction under Rule 11,” it is typically only appropriate in the face of
“serious misconduct when lesser sanctions would be ineffective or are unavailable.” Marina
Mgmt. Servs., Inc. v. Vessel My Girls, 202 F.3d 315, 325 (D.C. Cir. 2000); Liggon-Redding v.
Est. of Sugarman, 659 F.3d 258, 263 (3d Cir. 2011) (“Dismissing an action under Rule 11 . . . is
a sanction of last resort.”).
As many courts previously have admonished, “a Rule 11 motion is not a proper substitute
for a dispositive motion.” Betz v. Glob. Telesourcing, LLC, No. 21-cv-1320, 2021 WL 5865384,
at *4 (D.D.C. Dec. 10, 2021) (internal quotation marks omitted); see also Allscripts Healthcare,
LLC v. DR/Decision Res., LLC, 495 F. Supp. 3d 47, 50–51 (D. Mass. 2020) (collecting cases);
James v. Caterpillar, Inc., 824 F. App’x 374, 378 (6th Cir. 2020) (“[I]n general, motions for
13
sanctions should not substitute for motions to dismiss or motions for summary judgment, which
test the sufficiency of the complaint’s allegations.”). Despite that admonishment, Counter-
Defendants’ Rule 11 motion is essentially a motion for summary judgment. The first part of the
motion argues that the counterclaim fails because there is no evidence that Counter-Defendants’
alleged malpractice “proximately caused Androus to suffer damage,” see Counter-Defs.’ Rule 11
Mot. at 13–16, while the rest of the motion contends that there is no evidence showing that
Counter-Defendants “breached the standard of care,” see id. at 17–38; see also Crawford v. Katz,
32 A.3d 418, 427 (D.C. 2011) (explaining that, among other things, a claim of legal malpractice
requires the plaintiff to show a “breach of the [applicable] standard of care” and “a causal
relationship between the violation and the harm complained of” (internal quotation marks
omitted)); Williams v. Joynes, 677 S.E.2d 261, 264 (Va. 2009) (similar under Virginia law).
Throughout, Counter-Defendants cite evidence—and draw a litany of inferences therefrom—
which, they argue, shows beyond a shadow of a doubt that the counterclaims are legally and
factually vacuous.
The Court is not convinced. For the most part, Counter-Defendants’ motion—especially
when coupled with Counter-Plaintiffs’ response thereto—simply illuminates areas in which the
parties disagree on the strength of specific evidence, the inferences to be drawn from information
produced or revealed during discovery, and the application of the law to various facts. That
being so, the “better course” at this stage is for Counter-Defendants to raise their challenges to
the legal and factual sufficiency of the counterclaim through the more “traditional device” of a
motion for summary judgment, not a motion for Rule 11 sanctions. See Betz, 2021 WL 5865384,
at *4. Of course, it may ultimately be the case that, as Counter-Defendants contend, the
counterclaim is so lacking in factual and legal support that it should never have been brought in
14
the first place. But to the extent that is so, Counter-Defendants may file a renewed motion for
sanctions at a later point in time. See id. (explaining that when a “defendant contends ‘that
institution of the case itself was improper,’ ‘[c]ourts should, and often do, defer consideration
of . . . sanctions motions until the end of trial’” (quoting Lichtenstein v. Consol. Servs. Grp., Inc.,
173 F.3d 17, 23 (1st Cir. 1999))); see also 5A Charles Alan Wright, Arthur R. Miller & A.
Benjamin Spencer, Federal Practice and Procedure § 1337.1 (4th ed. 2021) (“[I]f the challenged
conduct is that there is no factual support for the institution of the action itself . . . , the question
of whether there has been a Rule 11 violation generally should not be decided until after the
litigation is completed.”); id. at n.22 (collecting cases). For now, however, Counter-Defendants’
motion for Rule 11 sanctions is denied.
C. Motions to Compel Discovery
Finally, the Court turns to Counter-Defendants motions to compel. See Counter-Defs.’
Mot. Compel, ECF No. 49-1; Counter-Defs.’ Suppl. Mot. Compel, ECF No. 54. Initially,
Counter-Defendants argued that Counter-Plaintiffs’ privilege logs inadequately described the
basis on which Counter-Plaintiffs sought to withhold over five hundred documents on the
grounds of the attorney-client privilege or the attorney work product doctrine. See Counter-
Defs.’ Mot. Compel at 3–4. They further argued that some documents listed on the privilege
logs were “[c]learly [d]iscoverable” because Counter-Plaintiffs had “implied[ly] waive[d]” the
attorney-client privilege by bringing their malpractice action. See id. at 4–5. Counter-Plaintiffs
originally retorted that their privilege logs were adequately descriptive and that none of the
documents listed within the logs was discoverable. See Counter-Pls.’ Mem. P&A Opp’n
Counter-Defs.’ Mot. Compel Discovery (“Counter-Pls.’ Opp’n Mot. Compel”), at 2–9, ECF No.
50.
15
The Court held a hearing on the motion to compel on May 17, 2023. Following the
hearing (and at the Court’s request), Counter-Plaintiffs submitted a declaration from their
counsel, Mr. Hoge. See Decl. Christopher G. Hoge Supp. Counter-Pls.’ Privilege Logs (“Hoge
Decl.”), ECF No. 57. Relevant here, the declaration first stated that Counter-Plaintiffs were
“withdraw[ing] their previous privilege objections” to certain documents and that, therefore,
those documents would “be produced.” See id. at 1. Second, the declaration provided further
detail to support Counter-Plaintiffs’ claims that the remaining documents listed in their privilege
logs had been properly withheld. See id. at 1–4. Counter-Defendants filed an opposition to the
declaration in which they argued that many of the remaining documents at issue are not protected
from discovery by the attorney-client privilege. See Counter-Defs.’ Reply Decls. Christopher G.
Hoge and Thomas T. Androus (“Counter-Defs.’ Opp’n Decls.”), ECF No. 59. However, they
also indicated that, based on Counter-Plaintiffs’ more fulsome descriptions of some of the
withheld documents, there were a number of documents that they were no longer seeking. See,
e.g., id. at 9–10.
The Court held another hearing on August 30, 2023. At that hearing, the Court
determined that it needed to review the remaining documents in camera to assess the privileged
status of those documents. Following the hearing, Counter-Plaintiffs submitted over eighty
documents for the Court’s review. It appears that some of the documents included in the file
provided by Counter-Plaintiffs are records which Counter-Defendants have indicated they are no
longer seeking. The Court will not address those documents; it will instead confine its review to
the approximately seventy documents which Counter-Plaintiffs contend are privileged but which
Counter-Defendants still seek. In addition to the documents themselves, Counter-Plaintiffs also
16
submitted two charts corresponding to their initial privilege logs. 5 The charts are essentially
truncated versions of the initial privilege logs in that the charts only list the documents discussed
in the Hoge Declaration. See Hoge Decl. The charts also differ from the original privilege logs
in that they provide slightly more detail than do the initial privilege logs regarding the topic or
substance of the documents being withheld.
1. Counter-Defendants’ First Motion to Compel
As discussed, Counter-Defendants seek disclosure of approximately seventy documents
which Counter-Plaintiffs contend are privileged. Federal Rule of Civil Procedure 26(b) provides,
in relevant part, that a party “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1); see Alexander v. FBI (“Alexander I”), 186 F.R.D. 78, 91 (D.D.C. 1998). Counter-
Plaintiffs argue that they have satisfied their obligations under the Rule because the remaining
documents are covered by the attorney-client privilege.
The attorney-client privilege shelters “confidential communications made between clients
and their attorneys when the communications are for the purpose of securing legal advice or
services.” In re Lindsey, 158 F.3d 1263, 1267 (D.C. Cir. 1998); see also Alexander v. FBI
(“Alexander II”), 186 F.R.D. 102, 110–11 (D.D.C. 1998) (explaining that “communications from
attorney to client are privileged only if they constitute legal advice, or tend directly or indirectly
to reveal the substance of a client confidence” (internal alteration omitted) (quoting United States
v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990))). The privilege exists “to encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
5
Counter-Plaintiffs’ initial privilege logs are available as attachments to Counter-
Defendants’ initial motion to compel. See Exs. B, C, Counter-Defs.’ Mot. Compel, ECF Nos.
49-4, 49-5.
17
in the observance of law and administration of justice.” Banneker Ventures, LLC v. Graham,
253 F. Supp. 3d 64, 70 (D.D.C. 2017) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389
(1981)).
The party invoking the privilege “bears the burden of proving” that it applies, In re
Lindsey, 158 F.3d at 1270, and must do so “by way of affidavits or other competent evidence,”
Alexander v. FBI (“Alexander III”), 192 F.R.D. 42, 45 (D.D.C. 2000) (quoting Alexander II, 186
F.R.D. at 111). Because the privilege is “narrowly construed,” United States v. Philip Morris
Inc., 212 F.R.D. 421, 424 (D.D.C. 2002), the party invoking its protection may not simply rely
on a “blanket assertion of the privilege,” Smith v. Ergo Sols., LLC, No. 14-cv-382, 2017 WL
2656096, at *2 (D.D.C. June 20, 2017) (quoting In re Lindsey, 158 F.3d at 1270). Instead, “the
proponent must conclusively prove each element of the privilege.” In re Lindsey, 158 F.3d at
1270 (internal alteration omitted) (quoting SEC v. Gulf & W. Indus., 518 F. Supp. 675, 682
(D.D.C. 1981)). Where, as here, a party’s affidavits and evidence are not sufficient, in and of
themselves, to demonstrate whether specific communications are attorney-client privileged, the
court may conduct an in camera review to determine for itself whether the “privilege [has been]
properly invoked.” Alexander III, 192 F.R.D. at 46.
Because this is a diversity action, state law “governs the scope of the [attorney-client]
privilege and waiver.” Feld v. Fireman’s Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013); see
also Berliner Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130, 134 (D.D.C. 2009).
Without much analysis, Counter-Defendants suggest that Virginia law should be applied to
determine whether the documents at issue are privileged and, if they are, whether Androus has
waived their privileged status. See Counter-Defs.’ Opp’n Decls. at 5 & n.2. For their part,
Counter-Plaintiffs cite a few D.C. Circuit and District Court opinions, see Counter-Pls.’ Opp’n
18
Mot. Compel at 5–6, and the “concise summary of the attorney-client privilege” endorsed by one
of those opinions, see In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984). They do not
otherwise meaningfully attempt to establish whether Virginia or District of Columbia law should
be applied to determine the issues of privilege in this case. The Court will therefore apply
Virginia law to assess the privileged status of the documents at issue. 6
Under Virginia law, the party invoking the privilege has the burden of establishing “that
[an] attorney-client relationship existed, that the communications under consideration are
privileged, and that the privilege was not waived.” Commonwealth v. Edwards, 370 S.E.2d 296,
301 (Va. 1988). “Confidential communications between attorney and client made because of
that relationship and concerning the subject matter of the attorney’s employment ‘are privileged
from disclosure.’” Id. (quoting Grant v. Harris, 82 S.E. 718, 719 (Va. 1914)). What is more,
“[t]he privilege attaches to communications of the client made to the attorney’s agents, including
accountants, when such agent’s services are indispensable to the attorney’s effective
representation of the client.” Id.
There are certain circumstances in which a client can waive the protections of the
attorney-client privilege. One circumstance in which such waiver occurs is “when the client
places otherwise privileged matters in controversy.” Minebea Co. v. Papst, 355 F. Supp. 2d 518,
522 (D.D.C. 2005) (quoting Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 151 (D.C.
Cir. 1997)). Courts have referred to this type of waiver as “implied” or “at issue” waiver. See
id. The “implied waiver doctrine” is designed “to prevent ‘an abuse of the [attorney-client]
privilege,’ that is, to prevent the confidentiality protected by the privilege from being used ‘as a
6
For what it is worth, Counter-Defendants assert that there appears to be “no appreciable
difference” between Virginia law and D.C. law for purposes of this motion. See Counter-Defs.’
Opp’n Decls. at 5 n.2.
19
tool for manipulation of the truth-seeking process.’” Id. (quoting In re Sealed Case, 676 F.2d
793, 807 (D.C. Cir. 1982)).
Communications between Androus and Ayesha Khan. Counter-Plaintiffs first invoke the
attorney-client privilege with regard to “email exchanges” between “Androus and Ayesha Khan,
an attorney with the Potomac Law Group, from whom Mr. Androus was seeking assistance
regarding his [Virginia state court] appeal . . . and post-trial motions.” Hoge Decl. at 2.
Although there is nothing in the relevant records to suggest that Androus ever retained Ms.
Khan, the documents suggest that Androus was considering retaining Ms. Khan’s services at the
time the emails were exchanged. See In re Sealed Case, 737 F.2d 94, 98 (D.C. Cir. 1984)
(explaining that the attorney-client privilege covers relationships between attorneys and an
individual who “sought to become a client” (citation omitted)). As for the substance of the
emails, many contain either explicit or implicit requests for legal advice from Androus to Ms.
Khan. Other emails are communications in which Ms. Khan provides legal advice to Androus.
Emails (and, in some cases, attachments to emails) fitting these descriptions are Bates-stamped:
REVIEW2022043001000355 through -0362; REVIEW2022043001001237 through -1241;
REVIEW2022043001003696, -3697, and -3699 through -3701; ANDROUSS23157;
ANDROUS23161; ANDROUS23164; and ANDROUS23167. Finally, because the substance of
these documents does not relate to the quality of Counter-Defendants’ representation, Androus
has not impliedly waived their privilege status by filing his malpractice counterclaim. The
documents need not be produced.
Emails that are Bates-stamped REVIEW2022043001001255 and
REVIEW2022043001001257 through -1260 all relate to an exchange regarding post-trial
proceedings in the Virginia litigation. Similarly, documents that are Bates-stamped
20
REVIEW2022043001002642 through -2650 address preparations and strategy for the Virginia
appeal. Thus, the Court finds that all of these documents are protected by the attorney-client
privilege because they are sufficiently related to Ms. Khan’s prospective representation of
Androus in the post-trial proceedings in Virginia. Moreover, the emails do not relate to the
quality of Counter-Defendants’ representation of Androus in the Virginia case, and the Court
therefore concludes that the privilege has not been waived as to these documents. The
documents need not be produced.
On the other hand, the document that is Bates-stamped REVIEW2022043001000128 is
simply a transmittal email and does not contain an express or implied request for legal advice. It
is therefore not covered by the attorney-client privilege and must be disclosed.
Communications between Androus and George Sommerville. The one document falling
into this category is Bates-stamped REVIEW2022043001000144. It is an email exchange
between Androus and attorney George Sommerville. Although Mr. Sommerville is one of the
many attorneys from whom Androus assertedly sought legal advice in connection with his appeal
of the adverse jury verdict, 7 see Counter-Pls.’ Opp’n Mot. Compel at 6–7; Hoge Decl. at 2, this
particular email exchange does not request or relay legal advice, nor does it communicate
confidential information. In other words, it was improperly withheld under the attorney-client
privilege and shall be disclosed.
Communications between Androus, Peter Greenspun, and Warner Young. The
documents in this category consist of emails between Androus and attorneys Peter Greenspun
and Warner Young. Among those documents, the document with Bates-stamp
7
The other attorneys from whom Androus claims to have sought legal advice regarding
his appeal are Peter Greenspun, Warner Young, Christopher Amolsch, Steve Emmert, George
Doumar, Michael Tucci, Marc Albert. See Hoge Decl. at 2–3.
21
REVIEW2022043001000729 contains essentially no substance—it simply attaches a document.
The email shall be produced. Likewise, the document that is Bates-stamped
REVIEW2022043001000893 also does not relate to a request for—or the provision of—legal
advice and shall therefore be produced.
The documents that bear Bates-stamps REVIEW2022043001000214 and
REVIEW2022043001003206 appear to be duplicates of the same email that Androus sent to Mr.
Greenspun on November 6, 2019—a point in time at which Androus was still represented by
Counter-Defendants. Further, the content of the email simply relays information (seemingly
verbatim) that Counter-Defendants sent to Androus. Given that the transmittal of the
information does not appear to be implicitly requesting legal advice, the Court is not persuaded
that these emails are covered by the attorney-client privilege. They shall be produced.
The emails Bates-stamped REVIEW2022043001000881, -0886, -0887, -0892, and
REVIEW2022043001003131 were also exchanged at a point in time when Androus was
represented by Counter-Defendants. Unlike the prior emails, however, these emails do implicitly
seek legal advice from Mr. Greenspun (and, to a lesser extent, Mr. Young). The documents are
therefore protected by the attorney-client privilege, and the privilege has not been waived
because the emails do not contain commentary regarding the quality of Counter-Defendants’
representation. They need not be produced.
Draft Engagement Letter. It does not appear that Counter-Plaintiffs included the draft
engagement letter between Androus and his current counsel amongst the files provided to the
Court for in camera review. 8 Counter-Defendants argue that, to the extent the draft letter reveals
8
The draft engagement letter is referred to as “Item No. 74” in Mr. Hoge’s Declaration.
See Hoge Decl. at 2.
22
“fee arrangements” between Androus and his counsel, that information should be disclosed. See
Counter-Defs.’ Opp’n Decls. at 12. Counter-Defendants are correct that “fee arrangements do
not fall within the attorney-client privilege because they are not the kinds of disclosures that
would not have been made absent the privilege and their disclosure does not incapacitate the
attorney from rendering legal advice.” Vingelli v. U.S. Drug Enf’t Agency, 992 F.2d 449, 452
(2d Cir. 1993); see also Lefcourt v. United States, 125 F.3d 79, 86 (2d Cir. 1997) (“As a general
rule, . . . fee information [is] not privileged.”). Thus, to the extent the draft letter reveals fee
arrangements, that information must be disclosed. On the other hand, information in the draft
letter that “reveal[s] confidences about the nature of legal services rendered” may be redacted.
Berliner Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130, 134 (D.D.C. 2009).
Communications between Androus and Christopher Amolsch. The one document falling
into this category is Bates-stamped REVIEW2022043001000876, and it is an email exchange
between Androus and attorney Christopher Amolsch. According to Androus’s declaration, he
contacted Mr. Amolsch for “assist[ance] . . . finding counsel to handle [his] appeal.” See
Androus Decl. at 2. That being so, and given that the contents of the email do not suggest that
Androus sent the email with the intention of receiving legal advice from Mr. Amolsch, the Court
concludes that the document is not shielded by the attorney-client privilege. It shall be produced.
Communications between Androus and Steve Emmert. The documents included in this
category are email exchanges between Androus and Steve Emmert, “one of the attorneys who
handled” Androus’s Virginia appeal. See Hoge Decl. at 3. They are Bates-stamped
REVIEW2022043001001004, REVIEW2022043001001129, REVIEW2022043001001741
through -1745, and REVIEW2022043001001748 through -1751.
23
The email bearing Bates-stamp REVIEW2022043001001004 contains a request for legal
advice from Androus to Mr. Emmert, as well as a response in which Mr. Emmert provides the
requested advice. The communication does not reflect any information regarding Counter-
Defendants’ representation of Androus, and therefore need not be produced.
The email bearing Bates-stamp REVIEW2022043001001129 neither requests nor
conveys legal advice. It is simply an invitation to join a conference call and—given that
Counter-Defendants were also invited to participate in the call—does not reveal any confidential
information. It shall be produced.
The emails bearing Bates-stamps REVIEW2022043001001744, -1745, and -1748
through -1751 are all variations of an email chain relating to a request for legal advice from
Androus to Mr. Emmert. Moreover, one of the documents (REVIEW2022043001001749)
conveys legal advice from Mr. Emmert to Androus. None of the documents contains
information regarding Counter-Defendants’ representation of Androus. The documents,
therefore, do not need to be produced.
Similarly, the emails that are Bates-stamped REVIEW2022043001001741 through -1743
are variations of the emails discussed in the preceding paragraph. These emails contain
additional requests for legal advice from Androus regarding the Virginia litigation. They also
contain and convey legal advice from Mr. Emmert to Androus. Consequently, the documents are
shielded by the attorney-client privilege and need not be produced.
Communications between Androus and Warner Young. The documents falling into this
category are Bates-stamped REVIEW2022043001001558, -1559, and -2541. They are email
exchanges between Androus and Warner Young in which Androus is either explicitly seeking
legal advice or Mr. Young is providing legal advice in connection with post-trial developments
24
in the Virginia litigation. Moreover, the substance of the emails does not concern the quality of
Counter-Defendants’ representation, and therefore does not go to the issues Counter-Plaintiff has
put in play by filing his malpractice claim. These documents need not be produced.
Communications between Androus and Peter Eliades. The documents falling into this
category are Bates-stamped REVIEW2022043001002480, -2481, and -2483. They are email
communications between Androus and Peter Eliades. Mr. Eliades—who is a lawyer and a
judge—is also Androus’s cousin. Although the emails at issue do indicate that Androus was
implicitly seeking legal advice from Mr. Eliades, Androus has provided no evidence suggesting
that he and Mr. Eliades ever “manifest[ed] an intention to create [an] attorney/client
relationship.” Headfirst Baseball LLC v. Elwood, 999 F. Supp. 2d 199, 209 (D.D.C. 2013)
(quoting In re Ryan, 670 A.2d 375, 379 (D.C. 1996)). Nor is there evidence from which the
Court may conclude that Androus “sought to become a client” of Mr. Eliades. See In re Sealed
Case, 737 F.2d at 98. These documents are therefore not covered by the attorney-client
privilege, and they shall be produced.
Communications between Androus, Michael Tucci, and Marc Albert. The only document
falling into this category is Bates-stamped REVIEW2022043001002671, and it is an email from
Androus to attorneys Michael Tucci and Marc Albert. The email implicitly requests legal advice
from Mr. Tucci. From the face of the email and Androus’s sworn declaration, it is plausible that
Androus was seeking to establish an attorney-client relationship with Mr. Tucci and Mr. Albert.
Moreover, the communication itself is benign and—contrary to Counter-Defendants’ concerns—
does not contain any comments from Androus regarding Counter-Defendants’ representation of
him in the Virginia litigation. The document need not be produced.
25
Communications between Androus and Vanessa Garcia. The documents in this category are
Bates-stamped ANDROUS-SUPP-00079, -00080, and -00081. They are email communications
between Androus and Vanessa Garcia, a legal assistant at the Greenspun Shapiro law firm. See
United States v. Singhal, 842 F. Supp. 2d 1, 5 (D.D.C. 2011) (“[T]he attorney-client privilege
undeniably extends to communications with one employed to assist the lawyer in the rendition of
professional legal services.” (internal quotation marks omitted)). Counter-Plaintiffs attest that
they were unable to find unredacted versions of the first two documents, and so have instead
attached redacted versions. From what the Court can glean, the documents appear to transmit a
fee arrangement agreement (ANDROUS-SUPP-00081) between Androus and the Greenspun
Shapiro law firm. As explained above “fee arrangements [typically] do not fall within the
attorney-client privilege because they are not the kinds of disclosures that would not have been
made absent the privilege and their disclosure does not incapacitate the attorney from rendering
legal advice.” See Vingelli, 992 F.2d at 452. That being so, Counter-Plaintiffs shall produce the
retainer letter but may redact portions of the letter that “reveal confidences about the nature of
legal services rendered.” Berliner Corcoran & Rowe LLP, 662 F. Supp. 2d at 134. Given that
the redacted versions of the transmittal emails do not reveal confidential information, they shall
be produced as well.
2. Counter-Defendants’ Supplemental Motion to Compel
Finally, Counter-Defendants seek to compel Counter-Plaintiffs to produce copies of
handwritten notes that Androus took during three expert depositions. See generally Counter-
Defs.’ Suppl. Mot. Compel. Counter-Plaintiffs contend that they are not required to produce the
notes because the notes are protected by the attorney-client privilege or the attorney work
product doctrine. See Counter-Pls.’ Mem. P. & A. Opp’n Counter-Defs.’ Suppl. Mot. Compel
26
(“Counter-Pls.’ Opp’n Suppl. Mot. Compel”) at 5–8, ECF No. 55. At the August 30, 2023
hearing, the Court determined that in camera inspection of the notes was necessary. The Court
has since reviewed the notes in camera and concludes that Counter-Plaintiffs need not produce
them.
That is because, to the extent Counter-Plaintiffs contend that the notes are shielded by the
attorney work product doctrine, the Court agrees. The attorney work-product doctrine “reflects
the strong ‘public policy underlying the orderly prosecution and defense of legal claims.’”
United States v. Williams Cos., 562 F.3d 387, 393 (D.C. Cir. 2009) (quoting Hickman v. Taylor,
329 U.S. 495, 510 (1947)). The work-product protection extends to “written materials that
lawyers prepare ‘in anticipation of litigation,’ ensuring that lawyers can prepare for litigation
without fear that opponents may obtain their private notes, memoranda, correspondence, and
other written materials.” Id. (internal quotation marks omitted). Originally a creature of the
common law, Federal Civil Rule of Procedure 26(b)(3) now “codifies the work-product
doctrine.” Upjohn Co., 449 U.S. at 398. Accordingly, “unlike the attorney client privilege, the
work product privilege is governed, even in diversity cases, by a uniform federal standard.” Feld
v. Fireman’s Fund Ins. Co., 991 F. Supp. 2d 242, 247 (D.D.C. 2013) (internal alteration omitted)
(quoting United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988)).
It is well-established that, “although the doctrine is known as the attorney work-product
doctrine, work product created by non-attorneys can also be protected if it is ‘so intertwined with
the legal analysis as to warrant protection.’” United States v. ISS Marine Servs., Inc., 905 F.
Supp. 2d 121, 134 (D.D.C. 2012) (quoting United States v. Deloitte LLP, 610 F.3d 129, 139
(D.C. Cir. 2010)). Moreover—and more to the point—Rule 26 provides that “a party may not
discover documents and tangible things that are prepared in anticipation of litigation or for trial
27
by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3) (emphasis added). That
is, the work product doctrine extends “to documents and things prepared for litigation or trial by .
. . the adverse party itself.” 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus,
Federal Practice and Procedure § 2024 (3d ed. 2010) (emphasis added); see also U.S. Equal
Emp. Opportunity Comm’n v. George Washington Univ., 342 F.R.D. 161, 171 & n.7 (D.D.C.
2022). Here, there is no dispute that Androus—a party to the litigation—composed the notes. In
a sworn declaration, Androus asserts that he took the notes so that he “might better communicate
[his] thoughts about [the expert depositions] with [his] attorneys.” See Ex. 2, Counter-Pls.’
Opp’n Suppl. Mot. Compel at 1, ECF No. 55-2. And the Court’s in camera review of the notes
confirms that they contain Androus’s impressions of specific aspects of the testimony, questions
for his lawyer, and thoughts regarding legal strategies his lawyer could pursue. In other words,
the Court concludes they were made in anticipation of the ongoing litigation and are therefore
covered by Rule 26(b)(3). 9
Counter-Defendants mount two responses. First, they contend that, even if the notes are
protected by the work product doctrine, they have demonstrated a “substantial need” for the
notes’ production. Counter-Defs. Suppl. Mot. Compel at 9–10. The Court disagrees. As the
D.C. Circuit has explained, an adverse party may discover work product “if ‘the party shows that
it has substantial need for the materials to prepare its case and cannot, without undue hardship,
obtain their substantial equivalent by other means,’ so long as counsel’s ‘impressions,
conclusions, opinions, or legal theories’ are not disclosed.” FTC v. Boehringer Ingelheim
Pharms., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (quoting Fed. R. Civ. P. 26(b)(3)(A)-(B)).
9
Because the Court concludes that the notes are covered by the work product doctrine
codified in Federal Rule of Civil Procedure 26(b)(3), the Court need not and will not decide
whether the notes are, as Counter-Plaintiffs argue, also shielded by the attorney-client privilege.
28
The party seeking discovery bears the burden of demonstrating “substantial need” and “undue
hardship.” See id. at 155. The moving party generally meets this burden by “demonstrat[ing]
that the materials are relevant to the case, the materials have a unique value apart from those
already in the movant’s possession, and ‘special circumstances’ excuse the movant’s failure to
obtain the requested materials itself.” Id.
As best the Court can tell, Counter-Defendants argue that they have a “substantial need”
for Androus’s notes because those notes may contradict other assertions Androus has made
during both this case and the Virginia litigation. See Counter-Defs.’ Suppl. Mot. Compel at 9–
10. They assert that Androus has made “sworn-to assertions in this litigation which flatly
contradict those that he made under oath in the [Virginia] Litigation,” and they add that Androus
has admitted that he has a “compromised memory.” Id. at 10. The Court fails to see how these
assertions regarding Androus’s allegedly contradictory statements and compromised memory
demonstrate a “substantial need” for the handwritten notes that Androus took during three expert
depositions. And Counter-Defendants have not cited—and the Court has not found—any
authority for the proposition that a litigant’s prior inconsistent statements or alleged memory
issues entitle his adversary to discover the notes taken by the litigant during depositions at which
they were both in attendance.
Second, Counter-Defendants argue that the notes should be disclosed pursuant to Federal
Rule of Evidence 612. Rule 612 provides that, when a deponent “uses a writing to refresh
memory” either “(1) while testifying; or (2) before testifying,” the “adverse party is entitled to
have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and
29
to introduce in evidence any portion that relates to the witness’s testimony.” 10 Fed. R. Evid.
612(a)-(b); see also Dickerson v. District of Columbia, No. 09-cv-2213, 2021 WL 1840396, at
*1 (D.D.C. May 7, 2021). If the witness “uses the writing to refresh [his] memory before
testifying, however, the adverse party is only entitled to production of the writing ‘if the court
decides that justice requires’” it. Dickerson, 2021 WL 1840396, at *1 (quoting Fed. R. Evid.
612(a)(2)); see also In re Kellogg Brown & Root, Inc., 796 F.3d 137, 143 (D.C. Cir. 2015).
Moreover, the mere fact that a witness used or “consulted” a document to prepare for testimony
does not, in and of itself, entitle the adverse party to the document’s production. Dickerson,
2021 WL 1840396, at *2. Instead, an adverse party “is only entitled to those documents that
‘influenced the witness’s testimony.’” Id. (quoting In re Kellogg Brown & Root, 796 F.3d at
144). Put slightly differently, Rule 612 only requires parties to produce “those documents upon
which [a witness] relied to answer specific, substantive questions.” Id. at *3; see also Sporck v.
Peil, 759 F.2d 312, 318 (3d Cir. 1985) (explaining that adverse party is only entitled to
documents “that [witness] relied on . . . in giving his testimony, or . . . those documents [that]
influenced his testimony”).
Counter-Defendants do not contend that Androus used his notes to refresh his memory
while he was testifying. Instead, they argue that Rule 612 compels the notes’ disclosure because
Androus used them to prepare for his deposition. See Counter-Defs.’ Suppl. Mot. Compel at 9;
see also Ex. B, Counter-Defs.’ Suppl. Mot. Compel at 5–7, ECF No. 54-2. Fatally, however,
during Androus’s deposition, Counter-Defendants failed to establish that Androus’s review of his
10
Rule 612 is made applicable to depositions and deposition testimony by Rule 30(c) of
the Federal Rules of Civil Procedure, which states that “[t]he examination and cross-examination
of a deponent proceed as they would at trial under the Federal Rules of Evidence.” Fed. R. Civ.
P. 30(c).
30
notes influenced his testimony or formed the basis for his answers to any specific, substantive
questions. Rather, the deposition transcript reveals that Counter-Defendants’ counsel only
inquired generally about what Androus had done to prepare for his deposition:
Q What, if anything, did you do to prepare for your deposition here today?
A I tried to get a good night’s sleep, unsuccessfully. I read the closing
arguments of the trial transcript. I read – I created my timeline. I tried to get an
up-to-date accounting of my expenses, and I wrote, you know, what I – not
including my – not from this case, but from my – related to my appeal. I read my
notes from the previous depositions that have been given this week. I read
documents related to the case.
...
Q And you said you reviewed your notes from the depositions that have
happened this week; is that correct?
A Correct.
Ex. B, Counter-Defs.’ Suppl. Mot. Compel at 5–6 (emphasis added). This line of questioning
does not show that Androus’s pre-deposition review of his notes “influenced [his] testimony” in
any way. See Dickerson, 2021 WL 1840396, at *2 (quoting In re Kellogg Brown & Root, 796
F.3d at 144). Equally important, the excerpted testimony illustrates that Counter-Defendants’
counsel did not lay the proper foundation under Rule 612 for production of Androus’s notes.
That is, Counter-Defendants’ counsel “inquired about the documents upon which [Androus] had
relied” before eliciting any specific, substantive testimony and then inquiring into the basis for
Androus’s responses. See id. “Without first eliciting [such] testimony, there existed no basis for
[counsel] asking [Androus] the source of that testimony.” See id. (quoting Sporck, 759 F.2d at
318); see also id. at *2–3 (illustrating how to lay a proper foundation under Rule 612).
Counter-Defendants’ failure to lay a proper foundation under Rule 612 provides
sufficient grounds on which to deny their supplemental motion to compel. But even if that were
not enough, the Court also observes that Rule 612(a)(2) entitles the opposing party to the
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production of a writing used to refresh a witness’s memory “before testifying” only “if the court
decides that justice” so requires. Fed. R. Evid. 612(a)(2). Despite that qualification, Counter-
Defendants make no argument that justice requires production of the notes. Rather, they
cursorily assert that “[s]ince the [n]otes were admittedly taken and then used to refresh
Androus’s memory, they should be turned over.” See Counter-Defs.’ Suppl. Mot. Compel at 9.
And the Court’s own review of the notes does not convince it that justice requires that Androus’s
notes be turned over to Counter-Defendants. Therefore, Counter-Defendants’ motion to compel
the production of the notes is denied.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’/Counter-Defendants’ motion to dismiss (ECF No.
58) is DENIED; Plaintiffs’/Counter-Defendants’ motion for sanctions (ECF No. 70) is
DENIED; Plaintiffs’/Counter-Defendants’ motion to compel (ECF No. 49) is GRANTED IN
PART AND DENIED IN PART; and Plaintiffs’/Counter-Defendants’ supplemental motion to
compel (ECF No. 54) is DENIED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: March 22, 2024 RUDOLPH CONTRERAS
United States District Judge
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Colella v. Androus
Combined Opinion