Chevron Corp. v. Salazar
275 F.R.D. 437
S.D.N.Y.2011Background
- Lago Agrio plaintiffs (LAPs) obtained a multibillion-dollar Ecuadorian judgment against Chevron for environmental claims; Chevron seeks to bar enforcement outside Ecuador and obtain an injunction.
- Chevron served subpoenas on LAPs’ attorneys Laura Garr, Andrew Woods, Joseph Kohn, and Kohn, Swift & Graf; respondents asserted attorney-client privilege and work product doctrine with privilege logs.
- Judge Kaplan’s Donziger waiver decision in the 1782 proceeding held privilege waived for documents Donziger should have logged; waiver scope extended to documents within respondents’ possession under Donziger’s control.
- Chevron sought production of documents; LAPs and respondents argued privilege and claw-back issues, with instruction for in-camera review if needed.
- Court had to decide (a) whether Donziger’s waiver is transferable to this proceeding and the scope of that waiver, (b) the applicability of the crime-fraud exception, and (c) the production and review protocol, including in-camera review.
- Result: Privileges largely overruled for Garr and Kohn respondents; Woods’ privileges waived for pre-October 20, 2010; crime-fraud exception applies to Calmbacher, Cabrera, and cleansing memos; in-camera review ordered for remaining documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope and transferability of Donziger waiver | Chevron contends Donziger waiver applies to all documents within Donziger’s reach in this proceeding. | Respondents argue waiver does not automatically transfer; some documents fall outside Donziger scope or post-waiver creations. | Waiver applies to Garr and Kohn; Woods pre-October 20, 2010 documents waived; post-October 20, 2010 documents not within Donziger waiver. |
| Scope of Donziger waiver over documents still in play | Chevron argues broader waiver covers responsive documents, including those in Donziger’s control. | Respondents contend only documents within Donziger subpoena scope are waived; some are outside or not in Donziger’s control. | Waiver extends to Garr and Kohn; Woods documents created before October 20, 2010 waived; post-October 20, 2010 documents may fall outside waiver. |
| Crime-fraud exception applicability | Chevron asserts the crime-fraud exception allows piercing for documents tied to Calmbacher, Cabrera, and cleansing memos. | Respondents challenge breadth; argue either no sufficient probable cause or require different governing law. | Crime-fraud exception applies to Calmbacher, Cabrera, and cleansing memos; ordered production or in-camera review for those materials. |
| Production and in-camera review procedure | Chevron seeks production of waived and crime-fraud-exception materials; timely in-camera scrutiny if needed. | Respondents object to overbroad production; request limiting review. | Woods to produce covered documents; in-camera review for remaining items by Aug 8, 2011; Garr and Kohn to produce non-inadvertent, responsive documents. |
| Control standard for non-traditional custodians |
Key Cases Cited
- United States v. International Brotherhood of Teamsters, 119 F.3d 210 (2d Cir.1997) (attorney-client privilege elements and burden on privilege holder)
- In re Grand Jury Subpoena Dated Sept. 15, 1983, 731 F.2d 1032 (2d Cir.1984) (privacy of legal communications; withholding requirements)
- In re Steinhardt Partners, 9 F.3d 230 (2d Cir.1993) (special master findings; deference limits)
- In re Omnicom Group, Inc. Securities Litigation, 233 F.R.D. 400 (S.D.N.Y.2006) (crime-fraud exception and privilege scope; in-camera review considerations)
- Diorinou v. Mezitis, 237 F.3d 133 (2d Cir.2001) (comity and foreign-law considerations in privilege disputes)