Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MIKHAIL FRIDMAN, PETR AVEN, and

GERMAN KHAN,

Plaintiffs,

v. Civil Action No. 1:17-2041-RJL

BEAN LLC a/k/a FUSION GPS, and GLENN

SIMPSON,

Defendants.

SUPPLEMENT TO
PLAINTIFFS’ SECOND MOTION TO COMPEL DEFENDANTS TO PRODUCE
DOCUMENTS IMPROPERLY WITHHELD AS PRIVILEGED
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 2 of 8

INTRODUCTION

On May 21, 2021, Plaintiffs filed their Second Motion to Compel Defendants to Produce

Documents Improperly Withheld as Privileged [Dkt. 147]. As Plaintiffs explained in that Motion,

despite having had three opportunities to produce a proper privilege log—and having been ordered

by this Court “to submit to plaintiffs an updated privilege log with additional detailed information

sufficient to allow determination of defendants’ claims of privilege”1—Defendants chose not to

do so. Instead, Defendants continued to withhold nearly 500 documents as privileged (while

producing under 750) based on a patently insufficient privilege log that entirely fails to satisfy

their “burden of demonstrating facts sufficient to establish [any] privilege’s applicability” to those

documents. E.g., In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n,

439 F.3d 740, 750 (D.C. Cir. 2006). Thus, Plaintiffs explained, the Court should compel

Defendants to produce those documents. See, e.g., Walker v. Ctr. for Food Safety, 667 F. Supp.

2d 133, 138 (D.D.C. 2009) (compelling production of withheld documents when party had

multiple opportunities to produce a sufficient privilege log but failed to do so); In re Chevron

Corp., No. 10-mc-371, 2013 WL 11241413, at *3 (D.D.C. Apr. 22, 2013) (same).

After Plaintiffs filed their Second Motion to Compel—and following the Government’s

indictment of former Perkins Coie attorney Michael Sussmann—it became clear that Defendants

possess numerous documents responsive to Plaintiffs’ RFPs that Defendants neither produced nor

included on their privilege log. Then, following Plaintiffs’ inquiry about those documents,

Defendants produced a supplemental privilege log that is just as deficient as their previous three

privilege logs. Plaintiffs file this Supplement to their Second Motion to Compel to update the

Court regarding Defendants’ latest insufficient privilege log and to request that the Court compel

1
Order Granting Pls.’ Mot. to Compel re Defs.’ Privilege Log (Mar. 30, 2021) (emphasis added).

1
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 3 of 8

Defendants to produce the documents listed thereon along with the documents listed on

Defendants’ third (insufficient) privilege log.

SUPPLEMENTAL INFORMATION

As the Court knows, Plaintiffs’ defamation claim arises from Defendants’ publication of

false statements accusing Plaintiffs of, among other things, bribery, extortion, and interference in

the 2016 U.S. Presidential Election, in an “intelligence” memorandum titled “Company

Intelligence Report 2016/112” (“CIR 112”), which Defendants commissioned from Christopher

Steele and his firm, Orbis Business Intelligence.2 As relevant here, Plaintiffs are indirect

shareholders of the Alfa group of companies (including Alfa Bank), and Plaintiffs’ RFPs requested

that Defendants produce, among other things, documents and communications with third parties

concerning the Alfa companies.3 At the time Plaintiffs filed their Second Motion to Compel,

Plaintiffs believed—based on Defendants’ representations—that Defendants had either produced

or listed on their privilege log all documents in their possession concerning Alfa responsive to

Plaintiffs’ RFPs.

Since Plaintiffs filed their Second Motion to Compel, they have learned that Defendants’

representations were false. On September 16, 2021, the U.S. Government (Special Counsel John

Durham) indicted then-Perkins Coie attorney Michael Sussmann for making false statements to

the FBI when he reported to the FBI the now-widely-debunked allegation that an Alfa Bank server

had secretly communicated with a Trump Organization server.4 The indictment alleges that,

2
See, e.g., Am. Compl. ¶¶ 1-10, 13, 31 (Dec. 12, 2017) [Dkt. 17]. CIR 112, along with similar
reports prepared by and for Defendants, have become known as the “Steele Dossier.” See id. ¶ 1.
3
Pls.’ First RFPs to Defs. at RFP No. 3 (Oct. 11, 2019).
4
Indictment, United States v. Michael A. Sussmann, No. 21-cr-582 (D.D.C. Sept. 16, 2021)
(“Sussmann Indictment”), https://www.justice.gov/sco/press-release/file/1433511/download.

2
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 4 of 8

contrary to his representation, Mr. Sussmann, in making that report, was acting on behalf of his

clients, the Clinton Campaign and “Tech Executive-1.”5 “Tech Executive-1” has since been

identified as Rodney Joffe.6

As relevant here, the Government’s indictment of Mr. Sussmann explains that Defendant

Fusion GPS (referred to as “U.S. Investigative Firm”7) coordinated with Mr. Sussmann and

Mr. Joffe to “disseminate the [Alfa Bank] allegations to the media” in an effort to create a

“narrative” of collusion between the Trump Campaign and Russia.8 The indictment also makes

specific reference to electronic communications sent or received by Fusion GPS principals and

employees as part of that effort.9 For example, the Sussmann Indictment provides that:

• Fusion personnel exchanged emails with Mr. Sussmann and then-Perkins Coie partner
Marc Elias with the subject line “Connecting you all by email” that related to the Alfa Bank
server allegations;10 and
• Fusion personnel exchanged emails with Mr. Joffe about the Alfa Bank server
allegations.11

5
Id. ¶ 4.
6
Evan Perez & Katelyn Polantz, Durham Issues Fresh Round of Subpoenas in His Continuing
Probe of FBI Investigation into Trump, Russia, CNN (Sept. 30, 2021)
https://www.cnn.com/2021/09/30/politics/durham-subpoenas-probe-russia-fbi-
sussman/index.html.
7
Erik Wemple (@ErikWemple), Tweet (Sept. 17, 2021, 12:01 p.m.),
https://twitter.com/ErikWemple/status/1438895830531022850.
8
Sussmann Indictment ¶ 25.
9
Id. ¶ 20.
10
Id. ¶ 20(d). Mr. Elias, who was the General Counsel for the Clinton Campaign, is identified in
the indictment as “Campaign Lawyer-1.” See Debra Cassens Weiss, Perkins Coie Partner Resigns
from Firm After He Is Charged by Special Counsel, ABA Journal (Sept. 17, 2021),
https://www.abajournal.com/news/article/perkins-coie-partner-resigns-from-firm-after-he-is-
charged-by-special-counsel.
11
Id. ¶ 20(g).

3
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On October 8, 2021, Plaintiffs’ counsel wrote to Defendants’ counsel raising the issue of

Defendants’ failure to produce or log those communications—which Plaintiffs only learned about

because the Sussmann Indictment was unsealed and which are plainly responsive to Plaintiffs’

discovery requests.12 In response, Defendants produced just 13 pages of documents and produced

a Supplemental Privilege Log listing 33 documents. Plaintiffs attach Defendants’ Supplemental

Privilege Log here as Exhibit A.

Defendants’ Supplemental Privilege Log is deficient for the exact same reasons that their

Third Privilege Log is deficient—as explained in Plaintiffs’ Motion to Compel. Specifically,

Defendants:

• Repeat the same hypergeneric privilege description that just parrots the legal
elements of privilege for every document: “Confidential research [or “communication
regarding research”] prepared at the direction of Perkins Coie and in anticipation of
litigation, and for the purpose of providing legal advice.”13

12
Defendants have never provided a satisfactory explanation as to why they did not produce these
documents before Plaintiffs were able to point to the Sussmann Indictment as proof that they
existed. Defendants’ counsel initially claimed that these documents “were not produced or logged
because they did not contain the agreed-upon search terms that Defendants used to locate
responsive discovery.” (Letter from J. Levy to T. Clare, A. Phillips, & J. Oliveri, at 1 (Oct. 21,
2021) (Exhibit B).) But Defendants’ counsel’s claim was false. As Plaintiffs’ counsel pointed
out in response to that claim, the list of agreed-upon search terms included “Alfa”—which is
contained in the document that Defendants belatedly produced as DEFS0011826—and the search
terms likewise included “@perkinscoie.com,” and Defendants’ Supplemental Privilege Log lists
multiple emails in which an “@perkinscoie.com” email address is included as a recipient or a cc.
(Letter from T. Clare & A. Phillips to J. Levy, at 1 (Oct. 26, 2021) (Exhibit C). Called out on his
false claim, Defendants’ counsel changed his story and asserted that Defendants’ glaring failure to
produce or log highly-responsive documents was “inadvertent.” (Letter from J. Levy to T. Clare
and A. Phillips, at 2 (Nov. 5, 2021) (Exhibit D).) In light of Defendants’ counsel’s apparent
misrepresentations about Defendants’ document production, Plaintiffs reserve their rights to
challenge Defendants’ productions and, if warranted, seek sanctions.
13
PRIV000498-530. This is improper. (See Pls.’ Second Mot. to Compel at 12-16 (explaining
that a privilege log must contain “individualized and detailed” privilege descriptions for all
documents withheld and that descriptions that simply “recit[e] [] the applicable legal standard” are
insufficient” (quoting United States v. KPMG LLP, 316 F. Supp. 2d 30, 40 (D.D.C. 2004); In re
Chevron Corp., No. 10-mc-371, 2013 WL 11241413, at *3 (D.D.C. Apr. 22, 2013))).)

4
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 6 of 8

• Claim Privilege Over Non-Attorney Communications. 25 of the 27 emails on

Defendants’ log do not involve attorneys, and the one attorney (Michael Sussmann) copied
on the other 2 emails did not represent the client for whom Defendants were performing
(political opposition) work.14

• Claim Privilege Over Communications with Third Party Rodney Joffe. Defendants
claim privilege over 2 emails with third-party Rodney Joffe (and their attachments)—and
no attorneys are copied on those emails.15 Notably, Defendants have never identified
Mr. Joffe as a person with discoverable information or knowledge of matters relevant to
this case, whether in their Rule 26 disclosures or any other filing. Moreover, Defendants’
only argument that these communications are privileged—despite the lack of attorney-
involvement and despite third-party Mr. Joffe’s inclusion in them—is that Mr. Joffe and
Defendants were both (purportedly) clients of Perkins Coie. But even if Defendants and
Mr. Joffe are both (separately) clients of large law firm Perkins Coie, that does not render
communications among those three privileged. The transitive property may hold for
mathematics, but it does not for legal privilege.

• Do Not Differentiate Privileges Claimed. Defendants generically claim both attorney-

client privilege and work-product protection without differentiation for all documents
withheld.16

• Omit Necessary Information Regarding Work-Product Claims. Defendants claim

work-product protection without identifying even generally what litigation was
anticipated.17

• Omit Necessary Information Regarding Attorney-Client Privilege Claims.

Defendants claim attorney-client privilege without identifying basic information required
to substantiate such claims, including the authors of non-email documents (which may have
been drafted or viewed by third parties) and attachments to emails from third parties (which
are facially non-privileged), the types of documents withheld (except emails), the number
of pages of documents withheld, and dates for non-emails.18

• Claim Facially Inapplicable Privileges. Defendants claim privilege over 3 emails dated
after October 31, 2016,19 the date on which former Clinton Campaign Chairman John
Podesta testified, under oath, that the Clinton Campaign’s engagement of Defendants

14
PRIV000501-02, PRIV000506-30. This is improper. (Pls.’ Second Mot. to Compel at 17-21.)
15
PRIV000498-505. This is improper. (See Pls.’ Second Mot. to Compel at 17-21.)
16
PRIV000498-530. This is improper. (See Pls.’ Second Mot. to Compel at 12-13.)
17
PRIV000498-530. This is improper. (See Pls.’ Second Mot. to Compel at 24-25.)
18
PRIV000498-530. This is improper. (See Pls.’ Second Mot. to Compel at 12-13.)
19
PRIV000527-29.

5
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 7 of 8

terminated.20 Thus, even if a privilege could have attached for the political opposition
work Defendants performed for the Clinton Campaign (it cannot), it would not apply to
those emails because they post-date that engagement.

* * *

Defendants should be compelled to produce the documents listed on their Supplemental

Privilege Log, just as they should be compelled to produce those listed on their Third Privilege

Log that is the subject of Plaintiffs’ Second Motion to Compel Defendants to Produce Documents

Improperly Withheld as Privileged [Dkt. 147].

Dated: December 3, 2021 Respectfully submitted,

/s/ Thomas A. Clare, P.C.

Thomas A. Clare, P.C. (DC Bar No. 461964)
Elizabeth M. Locke, P.C. (DC Bar No. 976552)
Joseph R. Oliveri (DC Bar No. 994029)
Andrew C. Phillips (DC Bar No. 998353)
CLARE LOCKE LLP
10 Prince Street
Alexandria, VA 22314
Tel: (202) 628-7400
tom@clarelocke.com
libby@clarelocke.com
joe@clarelocke.com
andy@clarelocke.com

Counsel for Plaintiffs Mikhail Fridman,

Petr Aven, and German Khan

20
Testimony of John Podesta Before the House Permanent Select Committee on Intelligence, at
11-12 (Dec. 4, 2017), https://s3.documentcloud.org/documents/6887547/John-Podesta-Dec-4-
2017.pdf.

6
 Case 1:17-cv-02041-RJL Document 172 Filed 12/03/21 Page 8 of 8

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Supplement to Plaintiffs’ Second Motion to Compel

Defendants to Produce Documents Improperly Withheld as Privileged was filed electronically with

the Clerk of Court on December 3, 2021, using the CM/ECF system, which will send notification

of such filing to all counsel of record.

/s/ Thomas A. Clare, P.C.

Thomas A. Clare, P.C.

7
Case 1:17-cv-02041-RJL Document 172-1 Filed 12/03/21 Page 1 of 3

Exhibit A
 Case 1:17-cv-02041-RJL Document 172-1 Filed 12/03/21 Page 2 of 3

Defendants' Supplemental Privilege Log

Date Created
(for
Privilege Log - Identifier Privilege Log - Group Identifier Document Type Date Sent Email From Email To Email CC Email BCC Email Subject Attachment Name File Name Attachments Privilege Claimed Description
and Loose
Documents)

Laura Seago <lseago@fusiongps.com>; PGP_MIME Versions Privileged Client/Attorney Confidential communication regarding research prepared
Rodney Joffe Privileged Client/Attorney Attorney work product;
PRIV000498 PRIV000498 Email 8/30/2016 Michael Sussmann Identification.dat;OpenPGP Communication - New at the direction of Perkins Coie and in anticipation of
<rjoffe@centergate.com> Communication - New York 1 Attorney-client privilege
<msussmann@perkinscoie.com> encrypted message.asc York 1.htm litigation, and for the purpose of providing legal advice

Confidential research prepared at the direction of Perkins

PGP_MIME Versions Attorney work product;
PRIV000499 PRIV000498 Attachment Coie and in anticipation of litigation, and for the purpose
Identification.dat Attorney-client privilege
of providing legal advice

Confidential research prepared at the direction of Perkins

OpenPGP encrypted Attorney work product;
PRIV000500 PRIV000498 Attachment Coie and in anticipation of litigation, and for the purpose
message.asc Attorney-client privilege
of providing legal advice

Re: Privileged
Confidential communication regarding research prepared
Laura Seago Re: Privileged Client/Attorney Client/Attorney Attorney work product;
PRIV000501 PRIV000501 Email 8/30/2016 Rodney Joffe <rjoffe@centergate.com> at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Communication - New York 1 Communication - New Attorney-client privilege
litigation, and for the purpose of providing legal advice
York 1.htm
Re: Privileged
Confidential communication regarding research prepared
Laura Seago Re: Privileged Client/Attorney Client/Attorney Attorney work product;
PRIV000502 PRIV000502 Email 8/30/2016 Rodney Joffe <rjoffe@centergate.com> smime.p7m at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Communication - New York 1 Communication - New Attorney-client privilege
litigation, and for the purpose of providing legal advice
York 1.htm

PGP_MIME Versions Privileged Client/Attorney Confidential communication regarding research prepared

Rodney Joffe Michael Sussmann Privileged Client/Attorney Attorney work product;
PRIV000503 PRIV000503 Email 8/31/2016 Laura Seago <lseago@fusiongps.com> Identification.dat;OpenPGP Communication - New at the direction of Perkins Coie and in anticipation of
<rjoffe@centergate.com> <msussmann@perkinscoie.com> Communication - New York 2 Attorney-client privilege
encrypted message.asc York 2.htm litigation, and for the purpose of providing legal advice

Confidential research prepared at the direction of Perkins

PGP_MIME Versions Attorney work product;
PRIV000504 PRIV000503 Attachment Coie and in anticipation of litigation, and for the purpose
Identification.dat Attorney-client privilege
of providing legal advice

Confidential research prepared at the direction of Perkins

OpenPGP encrypted Attorney work product;
PRIV000505 PRIV000503 Attachment Coie and in anticipation of litigation, and for the purpose
message.asc Attorney-client privilege
of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000506 PRIV000506 Email 10/05/2016 Peter Fritsch <pfritsch@fusiongps.com> Tea leaves Tea leaves.htm at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Glenn Simpson
Confidential communication regarding research prepared
Laura Seago <gsimpson@fusiongps.com>; Peter Fritsch Inbox.mbox?Item#10211. Attorney work product;
PRIV000507 PRIV000507 Email 10/11/2016 Re: Reddit post FYI smime.p7m at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> <pfritsch@fusiongps.com>; Jake Berkowitz eml Attorney-client privilege
litigation, and for the purpose of providing legal advice
<jberkowitz@fusiongps.com>

Confidential research prepared at the direction of Perkins

Attorney work product;
PRIV000508 PRIV000507 Attachment smime.p7m Coie and in anticipation of litigation, and for the purpose
Attorney-client privilege
of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000509 PRIV000509 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Tea leaves mbox?Item#3320.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000510 PRIV000510 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3318.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000511 PRIV000511 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3319.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000512 PRIV000512 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3317.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000513 PRIV000513 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3316.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000514 PRIV000514 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3313.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

2
 Case 1:17-cv-02041-RJL Document 172-1 Filed 12/03/21 Page 3 of 3

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000515 PRIV000515 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3312.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000516 PRIV000516 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3311.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000517 PRIV000517 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3310.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000518 PRIV000518 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3309.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000519 PRIV000519 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3308.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000520 PRIV000520 Email 10/22/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: Tea leaves mbox?Item#3307.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000521 PRIV000521 Email 10/22/2016 Laura Seago <lseago@fusiongps.com> Re: Tea leaves mbox?Item#3306.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000522 PRIV000522 Email 10/24/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: New? mbox?Item#3236.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000523 PRIV000523 Email 10/24/2016 Laura Seago <lseago@fusiongps.com> Re: New? mbox?Item#3235.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000524 PRIV000524 Email 10/24/2016 Laura Seago <lseago@fusiongps.com> Re: New? mbox?Item#3233.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Attorney work product;
PRIV000525 PRIV000525 Email 10/24/2016 Peter Fritsch <pfritsch@fusiongps.com> Re: New? mbox?Item#3232.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Peter Fritsch Attorney work product;
PRIV000526 PRIV000526 Email 10/24/2016 Laura Seago <lseago@fusiongps.com> Re: New? mbox?Item#3231.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Jake Berkowitz Attorney work product;
PRIV000527 PRIV000527 Email 11/01/2016 Peter Fritsch <pfritsch@fusiongps.com> What the other side is saying mbox?Item#2097.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> <jberkowitz@fusiongps.com> Attorney-client privilege
litigation, and for the purpose of providing legal advice

Laura Seago <lseago@fusiongps.com>; Confidential communication regarding research prepared

Peter Fritsch Patrick Corcoran Re: do we have an answer to Attorney work product;
PRIV000528 PRIV000528 Email 11/01/2016 Jake Berkowitz mbox?Item#2037.eml at the direction of Perkins Coie and in anticipation of
<pfritsch@fusiongps.com> <pcorcoran@fusiongps.com> this?? Attorney-client privilege
<jberkowitz@fusiongps.com> litigation, and for the purpose of providing legal advice

Confidential communication regarding research prepared

Laura Seago Jake Berkowitz Re: What the other side is Attorney work product;
PRIV000529 PRIV000529 Email 11/01/2016 Peter Fritsch <pfritsch@fusiongps.com> mbox?Item#1956.eml at the direction of Perkins Coie and in anticipation of
<lseago@fusiongps.com> <jberkowitz@fusiongps.com> saying Attorney-client privilege
litigation, and for the purpose of providing legal advice

Confidential research prepared at the direction of Perkins

Attorney work product;
PRIV000530 PRIV000530 NetworkData.php Coie and in anticipation of litigation, and for the purpose
Attorney-client privilege
of providing legal advice

2
Case 1:17-cv-02041-RJL Document 172-2 Filed 12/03/21 Page 1 of 3

Exhibit B
 Case 1:17-cv-02041-RJL Document 172-2 Filed 12/03/21 Page 2 of 3

Joshua A. Levy
Levy Firestone Muse LLP
1701 K Street, NW, Ste 350
Washington, DC 20006
T (202) 845-3215
F (202) 595-8253
levyfirestone.com

October 21, 2021

via Electronic Mail

Thomas A. Clare
Joseph R. Oliveri
Andrew C. Phillips
10 Prince Street
Alexandria, VA 22314
tom@clarelocke.com
joe@clarelocke.com
andy@clarelocke.com

Re: Fridman v. Bean LLC, 17-cv-2041 (RJL)

Dear Tom, Andy and Joe:

This responds to your letter dated October 8, 2021.

Defendants have already produced and logged responsive documents to the

extent they contained any of the agreed-upon search terms. The documents described
in your letter were not produced or logged because they did not contain the agreed-
upon search terms that Defendants used to locate responsive discovery.1 On March 23,
2020, Plaintiffs proposed search terms for Defendants to use to locate documents to
review for responsiveness to Plaintiffs’ document requests. Plaintiffs’ counsel and
Defendants’ counsel negotiated a list of search terms for Defendants to use. The list
adopted Plaintiffs’ search terms and included additional terms proposed by Defendants.

1
One of the documents described in your email – an August 12 email – was not included
on Defendants’ privilege log because it is not in Defendants’ possession.
 Case 1:17-cv-02041-RJL Document 172-2 Filed 12/03/21 Page 3 of 3

Letter to T. Clare and J. Oliveri

October 21, 2021
Page 2 of 2

See Email from M. Dunn to J. Levy (Mar. 23, 2020); Attachment to Ltr. from J. Levy to A.
Lewis (Apr. 29, 2020).

In light of your letter, to avoid litigation and allay the concerns expressed in your
October 8 letter, and without waiver of Defendants’ objections, we are transmitting
additional documents that did not arise from the agreed-upon search terms (Bates
stamped as DEFS0011814-DEFS0011826) and a supplemental privilege log containing
additional documents pertaining to the server allegations.

This letter is without waiver of Defendants’ rights, privileges, or objections.

Sincerely,

Joshua A. Levy
Case 1:17-cv-02041-RJL Document 172-3 Filed 12/03/21 Page 1 of 3

Exhibit C
 Case 1:17-cv-02041-RJL Document 172-3 Filed 12/03/21 Page 2 of 3

THOMAS A. CLARE, P.C. ANDREW C. PHILLIPS

tom@clarelocke.com andy@clarelocke.com
(202) 628-7401 10 Prince Street (202) 628-7404
Alexandria, Virginia 22314
(202) 628-7400
www.clarelocke.com

October 26, 2021

Via Email

Joshua A. Levy
Rachel Clattenburg
Andrew Sharp
Levy Firestone Muse
1701 K Street NW, Ste 350
Washington, DC 20006
jal@levyfirestone.com
rmc@levyfirestone.com
eas@levyfirestone.com

Re: Fridman v. Bean LLC a/k/a Fusion GPS et al., No. 17-cv-2041 (D.D.C.)

Dear Josh, Rachel, and Andrew:

We are in receipt of your October 21 letter sent in response to our October 8 letter regarding
the Fusion GPS communications referenced in the indictment of Michael Sussman. Your letter,
and the accompanying production and supplemental privilege log, raise several additional questions
that need to be addressed.
First, your letter states that the documents described in our October 8 letter “were not
[previously] produced or logged because they did not contain the agreed-upon search terms that
Defendants used to locate responsive discovery.” But that is plainly not the case. For example, the
list of search terms attached to Mr. Levy’s April 29, 2020 letter to Alan Lewis includes the phrase
“Alfa,” which is contained in the document that was just produced as DEFS0011826. Those search
terms also include any email in which “@perkinscoie.com” is in “any of the to/from/cc/bcc fields.”
Defendants’ October 21, 2020 supplemental privilege log now lists multiple emails in which an
“@perkinscoie.com” email address is included as a recipient or a cc. This obviously calls into
question Defendants’ application of search terms and/or Defendants’ review of documents that hit
on those terms. Please explain why documents that included search terms from your April 29, 2020
list were not previously produced or logged.
 Case 1:17-cv-02041-RJL Document 172-3 Filed 12/03/21 Page 3 of 3

Second, we note that Defendants have included on their October 21, 2020 supplemental
privilege log numerous communications with non-attorney third parties.1 Please explain the basis
for your contention that these communications are protected by the attorney-client privilege and
work-product doctrines, and why you contend that any potentially applicable privilege has not been
waived.
Third, your letter states in footnote one that “[o]ne of the documents described in your email
[sic] – an August 12 email – was not included on Defendants’ privilege log because it is not in
Defendants’ possession.” The indictment states that document in question was an August 12, 2016
email communication between Fusion GPS personnel, Mr. Sussman, and then-Perkins Coie partner
Marc Elias concerning the server allegations involving Alfa Bank. We note that Defendants have
withheld many communications with Perkins Coie attorneys—including many from the same
timeframe that are listed in Defendants’ October 21, 2021 supplemental privilege log—on the
grounds that all such communications were prepared “in anticipation of litigation.” If all
communications with Perkins Coie attorneys were prepared in anticipation of litigation as
Defendants claim, then Defendants had an obligation to preserve those communications. Please
explain why the August 12, 2016 email communication is not in Defendants’ possession.
Finally, we note that in its recent opposition to Mr. Sussman’s motion for a bill of
particulars, the Government stated that it had produced to Mr. Sussman discovery that included
documents obtained from a subpoena to Fusion GPS.2 Plaintiffs’ Request for Production No. 16
specifically requests “[a]ll documents produced by you or to you in any litigation or court or
governmental proceeding concerning Plaintiffs.” The documents referenced in the Government’s
recent filing as having been produced by Fusion GPS in response to a grand jury subpoena
concerning the server allegations are plainly responsive to this request. Please immediately produce
those documents.

Sincerely,

Thomas A. Clare, P.C.

Andrew C. Phillips

1
See, e.g., PRIV000498; PRIV000501-503.
2
Government’s Opp’n to Def.’s Mot. for a Bill of Particulars at 4, United States v. Sussman, Crim.
No. 21-582 (CRC) (D.D.C. Oct. 20, 2021) [Dkt. 19].

2
Case 1:17-cv-02041-RJL Document 172-4 Filed 12/03/21 Page 1 of 3

Exhibit D
 Case 1:17-cv-02041-RJL Document 172-4 Filed 12/03/21 Page 2 of 3

Joshua A. Levy
Levy Firestone Muse LLP
1701 K Street, NW, Ste 350
Washington, DC 20006
T (202) 845-3215
F (202) 595-8253
levyfirestone.com
November 5, 2021

via Electronic Mail

Thomas A. Clare
Andrew C. Phillips
10 Prince Street
Alexandria, VA 22314
tom@clarelocke.com
andy@clarelocke.com

Re: Fridman v. Bean LLC, 17-cv-2041 (RJL)

Dear Tom and Andy:

This letter responds to your letter dated October 26, 2021.

First, omission of DEFS001826 from the 2020 production was inadvertent. In

addition, the “@perkinscoie.com” emails, included in the Oct. 21, 2021 supplemental
privilege log, involve Mr. Joffe, an individual whose name Defendants were not aware
had any relevance to CIR 112 until very recently. Defendants are not aware of any other
responsive documents containing the April 29, 2020 search terms that have not been
logged or produced.

Second, with respect to your questions concerning Defendants’ privilege log, the
communications between Defendants and non-attorney third parties are protected by
the attorney-client privilege and work-product doctrines because the third party was
represented by Perkins Coie, and because Defendants were working at Perkins Coie’s
direction on matters of common interest shared between this third party and other
Perkins Coie clients. To the extent Defendants were working at Perkins Coie’s direction,
it is covered by the attorney-client privilege. See, e.g., Linde Thomson Langworthy Kohn
 Case 1:17-cv-02041-RJL Document 172-4 Filed 12/03/21 Page 3 of 3

Letter to T. Clare and J. Oliveri

November 5, 2021
Page 2 of 2

& Van Dyke, P.C. v. Resol. Tr. Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993) (“The attorney-
client privilege undeniably extends to communications with one employed to assist the
lawyer in the rendition of professional legal services.” (internal quotation mark omitted)).
The third party copied here was also represented by Perkins Coie and shared interests
in actual or potential litigation with the client(s) that Defendants’ work was intended to
assist. “[P]arties with shared interests in actual or potential litigation may share
information protected by the attorney-client privilege without waiving the
privilege.” HTC Corp. v. IPCom GmbH & Co., KG, No. CV 08-1897 (RMC), 2010 WL
11719072, at *7 n.10 (D.D.C. Oct. 26, 2010) (citing In re United Mine Workers of Am.
Emp. Benefit Plans Litig., 159 F.R.D. 307, 313 (D.D.C. 1994)). The attorney-client
privilege that covered Defendants’ work for Perkins Coie was not waived by
communications with this third party because of the third party’s shared interest with
other Perkins Coie clients.

Third, with respect to your questions related to documents no longer in

Defendants’ possession, Defendants have already stated their position in response to
Plaintiffs’ Interrogatories, see Defs.’ Revised Resps. to Pls.’ Interrogs., at Resp. No. 21
(May 18, 2020) & Defs.’ Revised Resps. to Pls.’ Interrogs. 9 & 23, at Resp. No. 23 (Aug.
7, 2020), and Defendants have already addressed Plaintiffs’ unsupported contention that
Defendants were obligated to indefinitely preserve documents prepared in anticipation
of litigation. See Defs.’ Opp to Pls.’ Mot. to Compel, ECF No. 104, at 12 n.9; Defs.’ Opp.
to Pls.’ Second Mot. to Compel, ECF No. 152 at 21 n.13.

Finally, Defendants have produced the documents concerning the server

allegations that were produced in response to the grand jury subpoena.

Sincerely,

Joshua A. Levy