EXHIBITC - GIR · Case 2:08-cv-00299-DWA Document 165-1 Filed 11/29114 Page 21 of 41 Buchanan Inge:rsoll1~\ Rooney PC Allorneys & Government Relations Professionals Charles B. Gibbons

$Page 1: EXHIBITC - GIR · Case 2:08-cv-00299-DWA Document 165-1 Filed 11/29114 Page 21 of 41 Buchanan Inge:rsoll1~\ Rooney PC Allorneys & Government Relations Professionals Charles B. Gibbons$
Case 2:08-cv-00299-DWA Document 165-1 Filed 11/29/14 Page 20 of 41

EXHIBITC


Case 2:08-cv-00299-DWA Document 165-1 Filed 11/29114 Page 21 of 41

Buchanan Inge:rsoll1~\ Rooney PC Allorneys & Government Relations Professionals

Charles B. Gibbons

412 392 2025 [email protected]

December 12, 2013

VIA ELECTRONIC MAIL AND FIRST CLASS MAIL

Hon. Donetta W. Ambrose United States District Judge United States District Com1

for the Western District ofPe1msylvania United States Courthouse 700 Grant Street Pittsburgh, P A 15219

One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410

T 412 562 8800 F 412 562 1041

www.bipc.com

RE: Aluminium Bahrain B.S. C. v. Alcoa Inc. et al., No. 2:08-cv-299-DW A I

Dear Judge Ambrose:

The transcript attached to Attorney David Kendall's letter ofDecember 10, 2013 in the above-referenc.ed case makes reference to ce11ain actions by members of Akin Gump Strauss Hauer & Feld LLP but does not explain the basis for those actions. The attached correspondence fumishes that explanation. I also note that we are attempting to obtain a full transcript of the aborted criminal trial of Mr. Dahdaleh in the United Kingdom. We believe that the trial transcript contains sufficient admissions of fact to supp011, in concert with our other evidence, a motion for summa1y judgment which we intend to file promptly.

CBG/drg Enclosure

cc: David E. Kendall, Esq. Mark J. MacDougall, Esq. W. Randolph Teslik, Esq. David J. Berardinelli, Esq.

California .. Delaware :: Florida :: New Jersey :: New Yorl1. .. Pennsylvania :: Virginia :: V\'ashington, DC



Mr. Richard Day Serious Fraud Office 2-4 Cockspur Street London SW1 Y 5BS United Kingdom

Re: Aluminium Bahrain B.S.C.

Dear Richard:

February 9, 2013

AkinGump Strauss Hauer & Feid LLP

MARKJ.MACDOUGALL 1.202.887.451 O/rax: 1.202.887.4288 [email protected]

We are writing in response to your letter dated December 21, 2012 regarding the Serious· Fraud Office's case against Victor Dahdaleh and the related internal investigation conducted on behalf of our client, Aluminium Bahrain B.S.C. ("Alba").

Akin Gump and Kroll interviewed numerous witnesses during the course of the internal investigation authorized by Alba, including Ahmed A1 Noaimi, Bruce Hall and Jeremy Nottingham. Mahmood Al Kooheji was, and is, our principal client contact and so was not the subject of a witness interview. While witness notes and summaries, reports, and related materials were generated during the course of that investigation, these documents are subject to the attorney-client privilege and the attorney work product doctrine in the United States. As you know, Alba is pursuing its civil RICO claim against Mr. Dahdaleh in the U.S. District Court for the Western District of Pennsylvania. Any disclosure of documents or communications that are subject to the attorney-client privilege and/or att,orney work product doctrine would be highly prejudicial to our client and its case in the United States. For this reason, and because disclosure of such documents would waive the protections for all other purposes, we cannot produce them to the SFO.

1. Attorney-Client Privilege

First, certain statements contained in witness interview memoranda that Akin Gump or Kroll created are subject to the attorney-client privilege, which protects confidential communications between lawyer and client for the purpose of obtaining or providing legal advice, so long as neither party waives the privilege by disclosure to third parties. The privilege extends to corporate clients like Alba and to communications with both members of management and employees. Up john Co. v. United States, 449 U.S. 383, 394 (1981). Further, client communications with investigators at Kroll are subject to the attorney-client privilege because Kroll worked at the direction of Alba and Akin Gump to gather confidential information that was used to render legal advice to Alba. United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961)

RobertS. Strauss Building 11333 New Hampshire Avenue, NW I Washington, DC 20036-15641202.887.4000 I fax: 202.887.42881 aklngump.com

103867317 v6



Mr. Richard Day February 9, 2013 Page 2

AkinGump Strauss Hauer & Feld LLP

(holding that privilege applies to third pmiy who relays client communications to lawyer when information shared is in furtherance of the primary goal of attorney-client privilege).

Attorney-client privilege "encourage(s] full and frank communication between attorneys and their clients and ... recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Id. at 389. Many client communications that are paraphrased or summarized in our investigative reports and interview notes reveal privileged and confidential information that was divulged to enable us to evaluate Alba's legal claims.

As the client, Alba holds the attorney-client privilege, and Alba will not waive that privilege in this instance. Moreover, the District of Columbia Rules of Professional Conduct, which govern our conduct as members of the bar, prevent us from disclosing confidential information pertaining to our client and require us to uphold the attorney-client privilege. See D.C. Rules of Prof. Conduct, Rule 1.6.

2. Attorney Work Product Doctrine

Second, the reports and memoranda that were generated during witness interviews and other stages of the internal investigation are protected by the attorney work product doctrine. That doctrine protects from disclosure "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative" and particularly "the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b )(3). Protecting the lawyer's work product enables the lawyer to prepare the client's case by gathering information and planning legal strategy without fear that adversaries may use this information against the client. Hickman v. Taylor, 329 U.S. 495, 511 (1947). See also Upjohn, 449 U.S. at 401 (noting that forcing disclosure of attorney work product is especially disfavored).

As you know, the leadership of Alba commenced the internal investigation with the anticipation that the information uncovered would give rise to legal claims and enable Alba to recover losses that had resulted from suspected fraud. Likewise, Kroll and Akin Gump conducted witness interviews and prepared investigative reports with litigation in mind. Our work product therefore includes assessments of Alba's legal claims and opinions regarding the information gathered during the investigation. We, as Alba's lawyers, assert the work product protection here on behalf of our client.

103867317 v6


Case 2:08-cv-00299-DWA ,Document 165-1 Filed 11/29/14 Page 24 of 41

Mr. Richard Day February 9, 2013 Page 3

3. Waiver


As explained above, the materials generated during the internal investigation at Alba reveal both (a) privileged and confidential attorney-client communications and (b) our impressions and evaluations of those communications as we prepared Alba's claims. If Alba and · Akin Gump provided these documents to the SFO, we would waive the protections afforded by the attorney-client privilege and attorney work product doctrine. The documents- and all related information- would therefore be discoverable for all purposes and by all partiesi including individuals and corporations against whom Alba has pending or threatened claims.

Indeed, U.s: courts do not permit selective disclosure of materials that are subject to the attorney-client privilege or attorney work product doctrine. As a general matter, when the attorney-client privilege is waived for any reason, the privilege is relinquished for all purposes and circumstances. Once the privilege is intentionally waived as to a certain document- even in the context of a federal investigation- it is waived as to all "communications or information that concern the same subject matter" as the disclose.d document. Fed. R. Evid. 502(a). See also Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991); In reJohn Doe Corp., 675 F.2d 482,489 (2d Cir. 1982) ("A claim that a need for confidentiality must be respected ... is not consistent with selective disclosure when the claimant decides that the confidential materials can be put to other beneficial purposes."); Permian Corp. v. Unites States, 665 F.2d 1214, 1221-22 (D.C. Cir. 1981) (holding that corporation could not withhold information from one entity on grounds of privilege when corporation had already provided information to another government agency). Although Alba remains committed to assisting the SFO in its case, sharing privileged documents with the SFO would severely jeopardize Alba's legal claims and interests.

*** We hope that the foregoing will assist the SFO and the trial judge in understanding our

inability to provide documents that were created in the course of the internal investigation that we conducted on Alba's behalf. Please contact us if you have additional questions.

103867317 v6

Sfficerely, .CYU))~

cDougall Lauren B. Kerwin



Mr. Richard Day February 9, 2013 Page4

cc: Sasi-Kanth Mallela W. Randolph Teslik

103867317 v6




Sasi-Kanth Mallela, Esq. Serious Fraud Office 2-4 Cockspur Street London, SW1 Y 5BS

Re: R. v. Victor Dahdaleh

Dear Sasi:

November 18,2013

AkinGump STRAUSS HAUER & FELD LLP

MARK MACDOUGALL +1 202.887.451 0/fax: +1 202.887.4266 [email protected]

As you know, we represent Aluminium Bahrain, B.S.C. ("Alba") in connection with a series of civil and criminal matters in the United States, the United Kingdom, Norway and elsewhere. Beginning this week, senior officials of Alba are expected to testify in the trial of Victor Dahdaleh in Southw~k CroWn Court on charges brought by the Serious Fraud Office and relating to Mr. Dahdaleh's dealings with Alba. My understanding is that the Crown also intends to call and solicit testimony in this case from my law partner Randy Teslik, our colleague Tom Evans, and me at a later point in the trial.

Alba has consistently cooperated with SFO in this investigation and our client's officers and directors are prepared to testify at trial during the next few weeks. Mr. Teslik, Mr. Evans and I have likewise been authorized to give evidence with respect to the events that took place in London on or about Apri14, 2013. As the time for this testimony approaches, however, we must renew our very serious concems regarding the protection of the attomey-client privilege between Alba and its counsel:.... as well as the attorney-work product doctrine as it may be applied to documentation produced by Alba's counsel in the course of our work.

In that context, I would note that Mr. Dahdaleh remains a named defendant in Alba's civil suit, brought under the Racketeer Influenced and Conupt Organizations ("RICO") Act, which case is currently pending in the United States District Court for the Western District of Pennsylvania (Aluminium Bahrain, B.S. C. v. Victor Dahdaleh, 2:08- cv- 00299-DWA). The U.S. District Court has stayed proceedings in that case, in response to Mr. Dahdaleh's motion, until the conclusion of his criminal trial in London. In its order of July 9, 2013, the U.S. District Court directed that a status conference take place in the RICO case two weeks following the conclusion of Mr. Dahdaleh's criminal trial. At that status conference, Alba will move the U.S. District Court to open discovery and our client intends to vigorously prosecute the RICO case to its final conclusion.

Roberl S. Strauss BUilding 11333 New Hampshire Avenue, N.W.I Washington, D.C. 20036-15641202.887.40001 fax 202.887.42881 akingump com

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Sasi-Kanth Mallela, Esq. November 18, 2013 Page2


As you know well, in the course of our representation of Alba in connection with the investigation and prosecution of Mr. Dahdaleh by the SFO, there have been several occasions in which Mr. Dahdaleh's former and present counsel have attempted to invade the relationship between Alba and its lawyers. See, e.g., Letter from Mark J. MacDougall to Sasi-Kanth Mallela (June 3, 2013). While the protection of Alba's rights ahd privileges is of continuing concern to us as the company's lawyers, effmis by Mr. Dahdaleh's counsel to obtain Alba's privileged communications and attorney work product are of particularly grave concern in light of the RICO litigation in which we also represent Alba.

We have cooperated with the SFO from the beginning of this investigation and, at the same time, we have been vigilant in our efforts to protect Alba's rights and privileges. As the prospect of public testimony and cross-examination is now imminent, we must renew our request that the SFO and its counsel take all measures necessary to ensure that the attorney-client privilege and related protections enjoyed by Alba are not violated in this process.

Based on extensive discussions with our counsel in London, we understand that significant differences exist between the scope and application of the attorney-client privilege in the United States when compared to similar privileges under English law. Our counsel has likewise informed us that there is no mechanism in English criminal procedure through which an attorney for a witness may attend a trial and advise the witness when confronted with questions that could result in an involuntary waiver or invasion of the attorney-client privilege. Finally, you should be aware that the Code of Professional Responsibility of the District of Columbia, under which Mr. Teslik and I practice law, requires us to apply U.S. rules of privilege and confidentiality without regard to any alternative rules that may be present in a foreign venue.

With these considerations in mind, we ask that the SFO and its counsel take all steps necessary to protect witnesses associated with Alba from answering questions on direct or cross-examination that could result in a waiver, violation or other invasion of the attorney-client privilege. Moreover, we would ask that the SFO inform the Court that Mr. Teslik, Mr. Evans and I will refuse to answer any questions on either direct or cross-examination that we believe- in our professional judgment- would invade privileged communications or attorney work product. In that regard, I would note that Mr. Teslik and I will uniformly apply the District of Columbia's rules of privilege and attorney work product in answering or declining to answer any questions that may be put to us by counsel for any party in this trial.



Sasi-Kanth Mallela, Esq. November 18,2013 Page 3


Please let me know if you would like to discuss any aspect of this issue in greater detail

Mark J. N.IacDougall

cc: W. Randolph Teslik, Esq. Thomas Evans, Esq.



SFOI 51"riol~5

fraud office

Elm House 10-16 Elm Street London WC1X OBJ Director: David Green CB QC

Mark MacDougall Akin Gump Strauss Hauer & Feld LLP By e-mail only

Dear Mark,

R v Dahdaleh- Availability to give evidence

2 December 2013

Earlier today, His Honour Judge Loraine-Smith asked the prosecution to write to you to enquire about your availability to give evidence. The Judge has expressed a desire that you attend Southwark Crown Court this week to give evidence. The Judge has also Indicated that he would like the prosecution evid~nce to conclude this week.

John Black QC has informed the prosecution that you are unable to attend court owing to professional commitments. If it remains the position that you are unable to appear at Southwark Crown Court this week, the Judge would be grateful if you could provide as detailed an explanation as possible.

Yours sincerely (-· -·-,

c=:=-,)· ~....__'j":S")

Sasi-Kanth Mallela

Direct Tel: +44 (0)20 7239 7350 Direct Fax: +44 (0)20 7239 7016 Email: [email protected]

Switchboard; +44 (0)20 7239 7272 Main Fax; -t-44 (0)20 7637 1669 Brit doc Exchange; DX 135896 London (Grays Inn) 3 www.sfo.gov.uk

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John Black, QC 33 Chancery Lane London WC2A lEN

Re: R.v. Victor Dahdaleh

Dear John:

December 2, 2013

Akin ump STRAUSS HAUER & FELD LLP

Mark J, MacDougall +1 202.887.4510/fax: +1 202.887.4288 [email protected]

W, Randolph Tesllk +1 202.887.4287/fax: +1 202.887.4288 [email protected]

We are writing to ask that you provide a response to the letter that we received today from Sasi-Kanth Mallela of the Serious Fraud Office. We should be clear with regard to three important facts.

First, we were both asked by the SFO to be in London to testify in this case on November 21,22 and 25, 2013. We both traveled to London for that purpose earlier in the· week of November 18 and were present in London, available, and in contact with the SFO on each of those days. We were never asked to give evidence on any of those days- although we were told on several occasions to stand-by to be called. We then returned to the United States with the full knowledge and consent of the SFO.

We understand that the SFO is now insisting that we return to London immediately with the prospect that we might be called to testify in the prosecution of Mr. Dahdaleh this week. Both of us maintain substantial civil and criminal law practices representing multiple clients in Washington, D.C. and elsewhere in the United States. Following a prior trial delay that was precipitated by the water pipe incident at Southwark Crown Court, at the request of the SFO we both cleared our calendars and rescheduled matters that had been set for the week of November 18 and the early days of the week of November 25 in order to be available to testify. With the expectation that our testimony would be completed by November 25 ..:... as represented to us by the SFO- we both set a calendar of professional and client commitments in the United States for the days following our extended absences. We cannot now abandon these obligations on demand. We understand that you made counsel to the SFO aware of this fact as early as Saturday, November 30. Accordingly, our appearance this week is impossible.

Robert S. Strauss Building 11333 New Hampshire Avenue, N.W .J Washington, D.C. 20036-1564 I 202.887.4000 I fax 202.887.42881 akingurnp corn

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Case 2:08-cv-00299-DWA Document 165-1 Filed 11129/14 Page 31 of 41

John Black, QC December 2, 2013 Page 2

Ak&nGump STRAUSS HAUER & FELD LLP

Second, as the SFO is well aware, Mr. Dahdaleh remains a named defendant in Alba's civil suit, brought under the U.S. Racketeer Influenced and Corrupt Organizations ("RICO") Act, which is currently pending in the United States District Court for the Western District of Pennsylvania (Aluminium Bahrain, B.S.C. v. Victor Dahdaleh, 2:08-cv-00299-DWA). In response to Mr. Dahdaleh's motion, the U.S. District Court has stayed proceedings in that case until the conclusion of the criminal trial in Southwark Crown Court. In its order ofJuly 9, 2013, the Court directed that a status conference take place in the RICO case two weeks following the conclusion of the criminal trial. We have represented Alba in all aspects of the RICO case since it was first filed in 2008, as well as in other litigation matters that directly involve the conduct of Mr. Dahdaleh and companies under his control. Our client expects us to continue in that role until final disposition of those cases at trial or otherwise.

The witness statements that we provided to the SFO were limited to the events of April 4, 2013 involving Mr. Dahdaleh and his lawyers. It is, of course, highly unusual and fraught with risk for trial counsel in one case to testify in another case involving the same facts and the same party-opponent. From the time that the SFO first suggested that we provide evidence in this case, we have been led to believe that our testimony would be limited in all respects to matters addressed in our witness statements and the events of April4, 2013.

During the past few days, however, we have been apprised of a very troubling development. We understand that Mr. Dahdaleh's trial counsel has made it clear- in open court - that he intends to conduct broad cross-examination concerning Alba's anti-corruption investigations and the U.S. litigation in a manner that extends far beyond the events of April4, 2013. This prospect is entirely inconsistent with our clear understanding regarding the scope of our prospective testimony.

We would never have considered appearing as fact witnesses in this case if we had known that we would be subject to wide-ranging cross examination by Mr. Dahdaleh's counsel concerning unrelated aspects of our representation of Alba beyond the April4 meeting. Under U.S. law and the Rules of Professional Responsibility to which we are bound, we cannot disclose client confidences or work product and there is no available mechanism to adequately protect the confidentiality of these matters.

We also cannot disrupt or jeopardize Alba's rights in the RICO case in the United States. Defense counsel's effort to elicit wide-ranging testimony from Alba's lawyers will- and we believe is intended to- provide a ready basis for Mr. Dahdaleh to renew his previous argument to disqualify our law firm from continued representation of Alba in the U.S. litigation. Mr. Dahdaleh is the sole remaining named defendant in the federal RICO case in Pennsylvania. We



John Black, QC December 2, 2013 Page 3


fully expect the RICO case to proceed through discovery and to trial shortly after the present criminal trial in London is completed. Alba is not a party to Mr. Dahdaleh's criminal case and we cannot put our client at risk of being deprived of counsel in a case in which we have served for more than six years.

Finally, with regard to evidence of the events of April4, 2013, the Court has already ·heard the testimony of Mahmood Al-Kooheji and Thomas Evans. Both Mr. Al-Kooheji and Mr. Evans were present for the meeting of April 4, and we can presume that the SFO elicited testimony from both witnesses concerning those events. Given this fact, our testimony regarding the April 4 incident is now entirely cumulative of evidence that has already been heard in this case.

We hope that this letter is responsive to the inquiry of the Court and the SFO. We are grateful for your assistance and good counsel in this matter.

Sincerely,

flchTesllk



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Mark MacDougall/Randy Teslik Akin Gump Strauss Hauer & Feld LLP By e-mail only

3 December 2013

Dear Mark/Randy,

R v Dahdaleh- Availability to give evidence

I refer to your letter of 2 December 2013 addressed to John Black QC.

This morning the letter was brought to the attention of the Judge. The Judge remains of the view that you should give evidence at the earliest opportunity. He indicated that he may not be inclined to allow the prosecutlot:J an adjournment so that your evidence could be given at a later date. His view was that you should give evidence this week.

There is a real risk that the Defence would make an Abuse of Process application to stay the proceedings should you decline to give evidence. Should such an application succeed the consequence would be that the prosecution of Mr Dahdaleh would be terminated.

The Judge Indicated that any communication on this matter should now be conducted between you and the SFO directly. The Judge did not want Mr Black QC interposed between you and the prosecution In relation to the Issue of your attendance at court. Therefore, I would be grateful if you could communicate with me directly and let me know whether or not you are willing to reconsider the position and give evidence for the prosecution this week.

Yours sincerely

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Switchboard: +44 (0)20 7239 7272 Main Fax: +44 (0)20 7837 1689 Brit doc Exchange: OX 135896 London (Grays Inn) 3 www. sfo.gov. uk

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VIA ELECTRONIC MAIL

Sasi-Kanth Mallela, Esq. Serious Fraud Office 2-4 Cockspur Street London, SW1 Y 5BS


Dear Mr. Mallela:

December 3, 2013

kin ump STRAUSS HAUER & FELD LLP

Mark J. MacDougall +1 202.887.4510/lax: +1 202.887.4288 [email protected]

W. Randolph Tesllk +1 202.887.4287/lax: +1 202.887.4288 [email protected]

This will respond to your letter of today's date, which we received this morning.

Regrettably, neither the Serious Fraud Office- nor apparently the Court- has addressed the fundamental issues raised in our letter of December 2 to John Black QC, which was subsequently conveyed to the SFO. Although we both face difficult schedules this week, our overriding concern is the very substantial risk that any prospective examination would seek disclosure of confidential client information and attorney work product unrelated to the incident of Apri14, 2013. We cannot ignore our professional responsibilities or allow ourselves to be forced into a position of damaging our client's cause in the federal RICO litigation in Pennsylvania and in other proceedings. We would have hoped that the SFO and the Court would have recognized the compelling nature of both of these considerations, but our concerns appear to have been fully ignored.

It would se1ve no purpose to repeat the points made in our letter to you of December 2, 2013. But let us be clear- even if our other commitments would have permitted us to return to London this week- the recently disclosed prospect that we would be subjected to wide-ranging cross-examination (and perhaps redirect examination), concerning moi'e than six years of investigative and legal work for Alba, makes our trial testimony in this case impossible.

We are both experienced trial lawyers and are quite surprised that the cross examination foreshadowed by Mr. Dahdaleh's counsel would be permitted by the Court. As noted in our letter of yesterday, we would never have considered appearing as fact witnesses in the present trial if the prospect that we would be subject to sweeping interrogation by Mr. Dahdaleh's

RobertS. Slrauss Building 11333 New Hampshire Avenue, N.W.I Washington, D.C. 20036-16641202.887.4000 I lax 202.887.4288 I aldngump.com



Sasi-Kanth Mallela, Esq. December 3, 2013 Page 2

AkunGump STRAUSS HAUER & FELD LLP

counsel, concerning aspects of our representation outside the events of April4, 2013, had been properly disclosed to us.

We regret any disruption that our decision might bring to the prosecution of Mr. Dahdaleh or the orderly proceedings of the Court. We would ask the Court and the SFO to recognize that our client, Alba, is the victim in this case and has rights that must be protected. Chief among these are the right to effective assistance of counsel and the right to protect legal confidences from the prying inquiries of Mr. Dahdaleh- whom we will see again as a defendant in U.S. District Court in Pennsylvania. We cannot abandon these grave considerations of professional responsibility simply because a powerful government agency insists that we yield to its demands. On one point we feel certain we-can agree- no justice would be done if the serious charges against Mr. Dahdaleh are dismissed because two cumulative witnesses, who could testify to an incident that is not central to the crime or even charged in the bill of offenses, are now unavailable to give evidence.

We have not arrived at our. decision casually, but we cannot put at risk our professional obligations to our client under these circumstances.

Please arrange to circulate any response and all further correspondence to John Black, QC, our counsel in this matter.

Sincerely,

Mark J. MacDougall W. Randolph Teslik

cc: J olm Black, QC



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C/0 John Black QC Mark MacDougall/Randy Teslik Akin Gump Strauss Hauer & Feld LLP By e-mail only

5 December 2013

Dear Mark/Randy,

R v Dahdaleh -Availability to give evidence

I refer to your letter of 3 December 2013. I seek to address as fully as I am able to the concerns that you have outlined in your letter and previous correspondence.

The court will allow John Black QC to protect to the fullest extent permitted Alba's right to assert and maintain its legal privilege. The court and indeed the prosecution will seek to limit the scope of your evidence to that which Is relevant to the proceedings in this trial. This should limit the defence's ability to cross examine you on matters which are extraneous to these criminal proceedings and which relate solely to the RICO litigation In Pennsylvania. Both the prosecution and the court are acutely aware of and sensitive to your quite proper concerns in this regard.

· I note what you say In your letter about your evidence being cumulative to that of other witnesses who have already given evidence. However, the prosecution and more significantly the court, remain of the view that your evidence is still required.

Those who represent Mr Dahdaleh have repeated that they may make an Abuse of Process application should you decline to give evidence. Should such an application succeed the consequence would be that the prosecution of Mr Dahdaleh would be terminated. As you state In your letter of 3 December It would be most regrettable If the charges against Mr Dahdaleh were dismissed because you remain of the view that you are unable to testify owing to the duties you undoubtedly owe to your client.

Switchboard: +44 (0)20 7239 7272 Main Fax: +44 (0)20 78371689 Brit doc Exchange: OX 135896 London (Grays Inn) 3 www.sfo.gov.uk

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Page2 SFOI serious· fiTHH!

Office


Yours sincerely

Sasi-Kanth Mallela


Switchboard: +44 (0)20 7239 7272 Main Fax: +44 (0)20 7837 1689 Brit doc Exchange: DX 135896 Londori (Grays Inn) 3 www.sfo.gov.uk

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VIA ELECTRONIC MAIL

Sasi-Kanth Mallela, Esq. Serious Fraud Office 2-4 Cockspur Street London, SWl Y 5BS


Dear Mr. Mallela:

December 5, 20 13

We are writing in response to your letter oftoday's date.


Mark J. MacDougall +1 202.887.451 O/rax: +1 202.667.4266 [email protected]

W. Randolph Tesllk +1 202.687.4287/rax: +1 202.887.4266 [email protected]

We are troubled that neither the SFO - in renewing its demand that we appear and testify without limitation - nor the Court has made any effort to address the fundamental concerns of professional responsibility that we articulated in detail in our previous correspondence. If we yield to the demands of the SFO, we would be compelled to either breach our professional obligations to protect confidential client communications and work pr,oduct (which we would never do) or alternatively risk contempt. In your letter, you concede that the prosecution and the Court are "acutely aware of and sensitive to [our] quite proper concerns in this regard." Yet, rather than being offered reasonable alternatives to allow us to do our job and protect our client's interests, we have been subjected to bullying and threats of dire consequences unless we abandon our professional duties and broadly testify in Mr. Dahdaleh's trial.

As you well know, Alba is the principal victim of the corrupt scheme charged in this case. We have cooperated with the SFO from the outset of its investigation. At your request, we have arranged for the appearance of fact witnesses regardless of expense or inconvenience. We have consistently responded to your requests for the production of records and documents, including materials that were provided to other law enforcement agencies outside the United Kingdom.

We promptly disclosed the very troubling events of April4, 2013 to the SFO. The only witness statements which we were ever asked to give related solely to that episode. The suggestion was never made by the SFO or anyone else that we- Alba's lawyers- would be presented as general fact witnesses at Mr. Dahdaleh's trial. We were never asked, nor did we

RobertS. Strauss Building 11333 New Hampshire Avenue, N.W. 1 Washington, D.C. 20036-1564 I 202.887.4000 1 rax 202.887.42881 aklngump.com



Sasi-Kanth Mallela, Esq. December 5, 2013 Page2


agree to give, wide ranging evidence as to any other matter in this trial (including the collection or production of documents).

We are quite sure that you recognize that your suggestion in today's letter- that crossexamination would be limited to matters "relevant to the proceedings in this trial" - offers no protection for the serious equities that we are duty-bound to defend. We cannot, and we will not, agree to put at risk our client's privileged and confidential information or right to counsel by consenting to give unrestricted testimony at Mr. Dahdaleh's trial.

With regard to your prediction that the absence of our testimony may prompt the Court to dismiss the case, we are skeptical that such a result could reasonably follow solely because cwnulative witnesses do not appear to give trial evidence regarding a collateral matter that is not even charged in the indictment. As experienced defense lawyers and former prosecutors, we would be shocked that such an outcome would be under genuine consideration. We must, above all other considerations, act to protect and preserve our client's rights. We trust that the Court will only take such action, given the very serious charges in this case, as properly supports the interests of justice.

Mark J. MacDougall W. Randolph Teslik

cc: John Black, QC



VIA ELECTRONIC MAIL

David Green CB QC Director Serious Fraud Office 2-4 Cockspur Street London SW1Y 5BS

Sasi Kanth-Mallela, Esq. Serious Fraud Office 2-4 Cockspur Street London, SW1 Y 5BS


Dear Mr. Green:

December 6, 2013


Mark J. MacDougall + 1 202.887.451 0/fax: + 1 202.887.4288 [email protected]

W. Randolph Tesllk + 1 202.887 .4287/fax: + 1 202.887.4288 [email protected]

We are writing further to your telephone discussion earlier today with our counsel, John Black, QC. As you know well, we have been in correspondence with Sassi-Kanth Mallella of your Office for an extended period of time and we have stated in detail the professional obligations that govern any request for our testimony.

In asking Mr. Black to contact you, we want to be clear that we are- and have always been -prepared to testify on the terms consistent with the representations made by the Serious Fraud Office and our professional obligations to not disclose our client's confidential and privileged information. Throughout our extended correspondence with Mr. Mallela on this matter, no proposal has been made by the SFO that would facilitate our testimony while protecting the equities that we have articulated in numerous letters-and discussions.

So, as Mr. Black described to you earlier today, we would be prepared to testify by video link from the United States, provided that direct and cross-examination is limited to (1) the events of April4, 2013, that are the only subjects addressed in our respective witness statements and (2) the production of documents to the SFO by Akin Gump. These limitations on our testimony must be affirmed in an order of the Court and we would need to have access to any documentary exhibits in advance of our testimony.

RobertS. Strauss Building I 1333 New Hampshire Avenue, N.W. I Washington, D.C. 20036-1564J202.667.4000 I fax 202.887.4288 I aklngump.com



David Green CB QC Sasi Kanth-Mallela, Esq. December 6, 2013 Page 2

Al<inGump STRAUSS HAUER & FELD LLP

This is our best effort to find a mechanism to provide the trial testimony that was asked of us while protecting our client's rights and meeting our professional obligations. Please let Mr. Black know the response of the SFO at your earliest opportunity, and we will make the appropriate recommendation to our client.

Sincerely,

cc: John Black, QC

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Documents

EXHIBITC - GIR · Case 2:08-cv-00299-DWA Document 165-1 Filed 11/29114 Page 21 of 41 Buchanan Inge:rsoll1~\ Rooney PC Allorneys & Government Relations Professionals Charles B. Gibbons