Case 1:21-cr-00582-CRC Document 129 Filed 05/12/22 Page 1 of 11

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

v.

MICHAEL A. SUSSMANN,

Defendant,
Case No. 21-cr-582 (CRC)
TECH EXECUTIVE-1, FUSION GPS,
DEMOCRATIC NATIONAL
COMMITTEE, PERKINS COIE LLP,
HILLARY FOR AMERICA,

Intervenors.

OPINION AND ORDER

The government has moved the Court to review in camera 38 emails that were withheld

by the investigative research firm Fusion GPS based on attorney-client privilege and the

attorney-work-product doctrine in response to two grand jury subpoenas issued to Fusion during

the investigation of this case. Fusion withheld the emails and related attachments at the request

of Hillary Clinton’s 2016 presidential campaign (“Hillary for America”). In 2015, Hillary for

America and the Democratic National Committee (“DNC”) retained the law firm Perkins Coie to

provide various legal services. Perkins Coie partner Marc Elias led the representation while also

serving as the campaign’s General Counsel. Perkins Coie later hired Fusion GPS to assist its

work for the campaign. Specifically, Perkins’s engagement letter with Fusion provided that

Fusion’s work would support the firm’s provision of legal advice related to “defamation, libel,

and similar laws[.]” Gov’t Mot. to Compel, Exhibit C, ECF No. 64-3 (Retainer Agreement).

Meanwhile, in the summer of 2016, technology executive Rodney Joffe obtained certain

data reflecting communications between internet servers maintained for the Trump Organization
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and servers belonging to Russia’s Alfa Bank. Believing the data could support the existence of a

secret communications link between Alfa Bank and the Trump campaign and wishing to

disseminate it to a wider audience, Mr. Joffe shared the data with the defendant, then-Perkins

Coie partner Michael Sussmann, who had represented Mr. Joffe and his company on unrelated

matters. Mr. Sussmann, in turn, apparently alerted Mr. Elias to the existence of the data. Fusion

employees then met with Mr. Sussmann, Mr. Joffe, and Mr. Elias in August 2016; drafted a

“white paper” containing publicly sourced background information on Alfa Bank, including its

connections to the Russian government; and provided that white paper to members of the press

while urging them to write stories on Trump’s purported secret Russian communications

channel.

During the same time period, Mr. Joffe communicated by email with Fusion employee

Laura Seago, copying Mr. Sussmann. Ms. Seago is expected to testify at Mr. Sussmann’s

upcoming trial, which is scheduled to begin on May 16, 2022.

The 38 emails and attachments that are the subject of the government’s motion are among

approximately 1500 documents that Fusion GPS withheld from its grand jury production on

privilege grounds. (Fusion produced other, non-privileged documents in response to the

subpoenas.) Based on Fusion’s privilege log entries, the government suspects that the 38

documents relate to Fusion’s efforts to seed stories in the press about Mr. Trump’s ties to Alfa

Bank. The government argues that this type of opposition research and media-relations activity

is not encompassed by the attorney-work-product doctrine or attorney-client privilege and,

therefore, the emails were erroneously withheld. The government thus moved the Court to

review the documents in camera to confirm its suspicions. Fusion GPS, Hillary for America, the

DNC, and Mr. Joffe all intervened to defend the privilege assertions. Mr. Sussmann separately

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objected to in camera review and to any subsequent use of the emails by the Special Counsel at

trial. Among his objections are that the Special Counsel was informed of Fusion’s privilege

assertions more than a year ago, and has waited too long to challenge them on the eve of trial.

The Court granted the government’s motion for in camera review after a hearing and has now

had an opportunity to review the emails and attachments.

A. Application of the Asserted Privileges

Applying the two asserted privileges to the 38 emails it has reviewed, the Court finds that

Fusion GPS had no valid basis to withhold 22 of the 38 emails, but that it has met its burden to

establish privilege over the remaining 16. The Court analyzes each category separately.

1. The Non-Privileged Emails

The emails that are not subject to any privilege mostly involve internal communications

among Fusion GPS employees. The Court begins with the attorney-work-product assertion.

Hillary for America has submitted a sworn declaration from its general counsel, Marc Elias.

HFA Mot. to Intervene, Exhibit 4, ECF No. 86-4 (“Elias Decl.”). He states, consistent with

Fusion’s engagement letter, that Perkins Coie retained the firm “to provide consulting services in

support of the legal advice attorneys at Perkins Coie were providing to specific firm clients

‘related to defamation, libel, and similar laws in which accuracy is an essential legal element.’”

Elias Decl. ¶ 11. Mr. Elias attests that he generally provided direction for Fusion’s work and that

“on some occasions, Fusion’s work was distilled and incorporated into [his] judgments about

legal issues, while in other instances, [he] shared the results of Fusion’s work with [his] clients,”

including the Clinton Campaign and the DNC. Id. ¶ 12. As further background, Mr. Elias

explains that representing political campaigns has often required him to provide advice on the

risks of defamation claims by opposing candidates based on statements made or information

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disseminated by his clients. Id. ¶ 5. These risks were especially acute in the 2016 campaign, Mr.

Elias says, due to Donald Trump’s well-documented history of litigiousness. Id.

Counsel for Fusion GPS, Joshua Levy, has also submitted a declaration, which echoes

Mr. Elias’s attestation that Fusion’s investigative work was undertaken to aid Perkins Coie’s

representation of Hillary for America and the DNC. Fusion Opp’n Re: Mot. to Compel, Exhibit

1 ¶ 26, ECF No. 103-1 (“Levy Decl.”). With respect to the analysis of the Alfa Bank data

specifically, Mr. Levy states that “Fusion conducted that analysis for the purpose and in

furtherance of Perkins’s provision of legal advice to its clients concerning, among other things,

litigation risks facing those clients . . . during the 2016 election cycle.” Id. ¶ 28. It was on this

basis that Hillary for America directed Fusion to assert work-product privilege over the withheld

emails.

The attorney-work-product doctrine “precludes discovery of the mental impressions and

work product of attorneys, whether those mental impressions are captured in notes, memoranda,

briefs, or another form, so long as the work product was produced in the anticipation of

litigation.” United States v. Edelin, 128 F. Supp. 2d 23, 40 (D.D.C. 2001). This protection

extends to material prepared by an attorney’s “investigators and other agents” if that work was

also prepared in anticipation of litigation. United States v. Nobles, 422 U.S. 225, 238–39 (1975);

see United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). Applying this principle, courts

routinely extend the privilege to a range of third-party professionals who assist attorneys in

providing legal advice during or in anticipation of litigation. E.g., Kovel, 296 F.2d at 922

(translators and accountants); In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp.

2d 321, 325 (S.D.N.Y 2003) (law clerks and secretaries); In re G–I Holdings, 218 F.R.D. 428,

436 (D.N.J. 2003) (tax expert); United States v. Alvarez, 519 F.2d 1036, 1045–46 (3d Cir. 1975)

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(psychiatrist). That said, the privilege should not “be construed to engulf ‘all manner of

services.’” Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resol. Tr. Corp., 5 F.3d

1508, 1515 (D.C. Cir. 1993) (quoting FTC v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980)).

The Court has no reason to question Mr. Elias’s declaration that Perkins Coie retained

Fusion to assist in his provision of legal advice to the Clinton Campaign, or that one aspect of his

advice to the campaign was assessing the risk of potential defamation claims resulting from its

public statements. And that risk was far from academic given Mr. Trump’s track record of

lawsuits. To the extent Fusion conducted research or other investigative services that informed

Mr. Elias’s advice in that regard, its work product would therefore be protected. That is so even

if the work product closely resembles classic “opposition research.” See In re Grand Jury

Subpoenas, 265 F. Supp. 2d at 330 (upholding work product protection over work provided by

public relations consultant that informed the lawyers’ “fundamental client functions—such as []

advising the client of the legal risks of speaking publicly”).

But the record before the Court establishes that Fusion did more in connection with the

Alfa Bank allegations than simply provide information and analysis to Mr. Elias so that he could

better advise the Campaign on defamation risk. Based on non-privileged emails that Fusion did

produce to the grand jury, and on the withheld emails the Court has reviewed in camera, it is

clear that Fusion employees also interacted with the press as part of an affirmative media

relations effort by the Clinton Campaign. That effort included pitching certain stories, providing

information on background, and answering reporters’ questions. See generally Gov’t Reply Re:

Mot. to Compel, Ex. A, ECF No. 97-1. Some of the emails at issue—including internal Fusion

GPS discussions about the underlying data and emails circulating draft versions of one of the

background white papers that was ultimately provided to the press and the FBI—relate directly

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to that undertaking. And because these emails appear not to have been written in anticipation of

litigation but rather as part of ordinary media-relations work, they are not entitled to attorney-

work-product protection. See Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55

(S.D.N.Y. 2000) (“[A]s a general matter public relations advice, even if it bears on anticipated

litigation, falls outside the ambit of protection of the so-called ‘work product’ doctrine.”); see

also Blumenthal v. Drudge, 186 F.R.D. 236, 243 (D.D.C. 1999) (declining to extend attorney-

client privilege to work provided by a consultant with “media, journalistic and political

consulting experience” because he was “was retained for the value of his own advice, not to

assist the defendant’s attorneys in providing their legal advice”).

Nor does the attorney-client privilege apply to these 22 emails. The attorney-client

privilege protects “confidential communication between attorney and client, including by and to

non-attorneys serving as agents of attorneys,” if made “for the purpose of obtaining or providing

legal advice to the client.” In re Kellogg Brown & Root, Inc. (“KBR”), 756 F.3d 754, 758 (D.C.

Cir. 2014); see also Kovel, 296 F.2d at 922 (the attorney-client privilege extends to

communications by third parties that an attorney hired to facilitate “the effective consultation

between the client and the lawyer”). “So long as obtaining or providing legal advice was one of

the significant purposes” of the communications, the attorney-client privilege applies. KBR, 756

F.3d at 759–60.

Fusion argues, as it did in the work-product context, that its communications are covered

by attorney-client privilege because they assisted Mr. Elias in his representation of Hillary for

America. Fusion Opp’n at 14–15. Again, the Court does not doubt that some of Fusion’s

investigative work supported and informed Mr. Elias’s legal advice to the Clinton Campaign and

the DNC. But certain of their communications appear to relate solely to disseminating the

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information they and others had gathered. Furthermore, none of these withheld emails involve

communications between Fusion and Mr. Elias or Hillary for America. See Calvin Klein, 198

F.R.D. at 54 (only documents that “contain or reveal confidential communications from the

underlying client . . . for the purpose of obtaining legal advice” are protected by attorney-client

privilege). Therefore, for the same reason the work-product privilege does not apply, the

attorney-client privilege also does not apply these 22 emails and their attachments. 1

Consistent with this ruling, Fusion is directed to provide the Special Counsel the

documents numbered 2–11, 15, 16, 19–21, and 24–30 in the privilege log accompanying the

government’s motion by Monday, May 16, 2022.

2. The Privileged Emails

The remaining 16 emails (and attachments) are privileged. Eight of these emails also

involve internal communications among Fusion GPS employees, but the Court is unable to tell

from the emails or the surrounding circumstances whether they were prepared for a purpose

other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in

anticipation of litigation. The Court therefore finds that the privilege holders have met their

1
The Court rejects the government’s invitation to find a wholesale waiver of attorney-
client and work-product protections due to the publication of a book by Fusion’s principals,
Glenn Simpson and Peter Fritsch, or due to Christopher Steele’s testimony in a foreign
proceeding in March 2020. Neither of these revelations appear to divulge actual privileged
content, and regardless, the privilege may only be waived by the client—here, HFA. See Nat’l
Sec. Couns. v. Cent. Intel. Agency, 969 F.3d 406, 411–12 (D.C. Cir. 2020) (it is “axiomatic that
the attorney-client privilege is held by the client,” and therefore an attorney or agent’s disclosure
“is not treated as a waiver of the privilege” unless the agent “was acting on behalf of the client
when making the disclosures”). The Court additionally rejects the government’s contention that
Fusion’s communications with the press waive all related, internal communications on the same
subject. Alexander v. F.B.I., 198 F.R.D. 306, 315 (D.D.C. 2000) (“It cannot be the law that a
subsequent [communication], inspired by confidential communications but not revealing any
confidential information, would waive the privilege.”).

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burden to establish privilege based on the sworn declarations of Mr. Elias and Mr. Levy.

Furthermore, the government has not shown “a substantial need for the materials” in order to

pierce the privilege and access Fusion’s work product. Dir., Office of Thrift Supervision v.

Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. 1997).

The last eight emails (with attachments) comprise two email chains initiated by Mr. Joffe;

both are labelled “Privileged Client/Attorney Communications” and include transmissions of

information to Mr. Sussmann and Fusion employee Laura Seago. Mr. Joffe (the apparent client

here) has not offered a declaration supporting his privilege assertions. But he explains in his

opposition brief that “the purpose of the [] communications at issue was to obtain [Fusion’s]

assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe]

competent, informed legal advice.” Joffe Opp’n Re: Mot. to Compel, ECF No. 101, at 3–4. The

content and context of the emails are consistent with that explanation. And contrary to the

government’s argument, Ms. Seago’s presence on the emails does not vitiate the privilege. By

all accounts, her involvement related to the technical analysis of the data, which would naturally

inform Mr. Sussmann’s advice to his client about the data. It is irrelevant that she was retained

by Mr. Elias as opposed to Mr. Joffe or Mr. Sussmann. Application of the intermediary doctrine

turns on the role the intermediary played, not on who retained her. See Kovel, 296 F.2d at 922

(presence of an investigator or other expert does not destroy the privilege, “whether hired by the

lawyer or by the client”); see also Holland v. Island Creek Corp., 885 F. Supp. 4, 6 (D.D.C.

1995) (disclosure to a third-party does not waive the attorney-client privilege if “(1) the

disclosure is made due to actual or anticipated litigation; (2) for the purpose of furthering a

common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining

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confidentiality against adverse parties.”). Therefore, these emails (and attachments) were

properly withheld as privileged attorney-client communications.

B. Timeliness of the Special Counsel’s Motion

Apart from the validity of the privilege assertions, the defense separately objects to the

government’s motion to compel as untimely. The chronology is largely undisputed. The Special

Counsel served its first subpoena on Fusion in March 2021, and Fusion began producing

documents on a rolling basis the following month. Fusion and Perkins provided privilege logs to

the Special Counsel around the same time, and Fusion provided a second privilege log in August

2021. In May, June, and August, the Special Counsel corresponded with the various privilege

holders about their assertions of privilege; the privilege holders apparently remained steadfast in

their positions. Similar discussions happened in early January 2022 between the Special Counsel

and the DNC. The Special Counsel filed this motion on April 6, 2022.

Based on the above timeline, the Court generally agrees with the defense that the

government waited too long to compel production of the withheld emails. A right may be

forfeited “by the failure to make timely assertion of the right before a tribunal having jurisdiction

to determine it.” Yakus v. United States, 321 U.S. 414, 444 (1944). “As a general rule, when a

party fails to object timely to discovery requests, such objections are waived.” In re Papst

Licensing GMBH & Co. KG Litig., 550 F. Supp. 2d 17, 22 (D.D.C. 2008); Buttler v. Benson,

193 F.R.D. 664, 666 (D. Colo. 2000) (“A party cannot ignore available discovery remedies for

months and then, on the eve of trial, move the court for an order compelling production.”). 2

2
Indeed, D.C. Circuit precedent suggests “deciding a motion to compel . . . is the
functional equivalent of deciding a motion to quash” under Fed. R. Civ. P. 45, which must be
“timely filed.” Millennium TGA, Inc. v. Comcast Cable Commc’ns LLC, 286 F.R.D. 8, 10

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Based on the above timeline, the Special Counsel waited some eight months after it was

aware of the privilege holders’ final position to seek court intervention. See Def’s Resp. at 6–7,

ECF No. 71. The Special Counsel responds that it was engaged in good faith discussion with the

privilege holders to resolve this issue without burdening the Court. That may well be so, and the

Court obviously encourages parties to negotiate disputes on their own. Still, the record shows

that these discussions ended in January 2022—yet the Special Counsel waited to file this motion

until April 6, 2022, just over a month before trial was set to begin. And, given the number of

privilege holders involved and the fact-bound nature of the issues, resolving the motion has

naturally taken us to the eve of trial.

Under these circumstances, allowing the Special Counsel to use these documents at trial

would prejudice Mr. Sussmann’s defense. See Armenian Assembly of Am., Inc. v. Cafesjian,

772 F. Supp. 2d 129, 158–59 (D.D.C. 2011) (production of documents “on the eve of trial . . .

forced Defendants to spend a significant amount of time and resources reviewing these materials

instead of preparing their witnesses, rehearsing their arguments, and otherwise preparing”).

Although these documents are relatively few in number and do not strike the Court as being

particularly revelatory, the Court is not in the best position to predict how new evidence might

affect each side’s trial strategy and preparation. The Court therefore will not, as a matter of

principle, put Mr. Sussmann in the position of having to evaluate the documents, and any

implications they might have on his trial strategy, at this late date. See United States v. Alvin, 30

F. Supp. 3d 323, 343 (E.D. Pa. 2014) (granting defendant’s motion to dismiss indictment on

speedy trial grounds, noting that the defendant “was put in the position of requiring” a prior

(D.D.C. 2012); see also Advisory Committee Note, Fed. R. Crim. P. 17 (1944) (“This rule is
substantially the same as Rule 45(a) of the Federal Rules of Civil Procedure.”).

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continuance “by the Government’s failure to turn over discovery” until five days before trial);

Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (disclosure of evidence on the eve of trial

“tend[s] to throw existing strategies and preparation into disarray”).

Accordingly, the government will not be permitted to introduce the emails and

attachments that the Court has ruled are not subject to privilege. The Court takes no position on

the other approximately 1500 documents that Fusion GPS withheld as privileged, as they are not

the subject of the government’s motion. However, the Court will apply the principles set forth

above to any assertions of privilege during witness testimony at trial.

* * *

For the foregoing reasons, it is hereby

ORDERED that Fusion GPS, or the relevant privilege holder, produce the documents

numbered 2–11, 15, 16, 19–21, and 24–30 in the privilege log to the Special Counsel by

Monday, May 16, 2022.

SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge

Date: May 12, 2022

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