754 F. Supp. 2d 254
D. Mass.2010Background
- Lago Agrio plaintiffs submitted eight expert reports alleging damages on September 16, 2010.
- Chevron filed several § 1782 petitions (including for Shefftz) to obtain discovery for use in foreign proceedings on October 22, 2010.
- The Lago Agrio court appointed a single global damages expert, Cabrera, after pressuring for a global assessment of damages.
- A film leaked showing Cabrera discussing work with plaintiffs’ counsel before appointment, prompting Chevron to challenge Cabrera’s influence.
- Shefftz prepared an unjust enrichment report (reported to be based on Cabrera’s figures) and Chevron seeks the ‘real source’ of his opinion.
- The UNCITRAL arbitration under the BIT seeks to examine corruption and collusion between GRE and Lago Agrio plaintiffs; the § 1782 application seeks discovery for use in both proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 permits discovery for use in foreign proceedings (Lago Agrio and UNCITRAL). | Chevron asserts § 1782 authorizes discovery for use in foreign tribunals. | Respondent contends discovery should be restricted or not permitted in this context. | Yes; § 1782 applies to foreign proceedings (Lago Agrio and UNCITRAL). |
| Whether the Intel four discretionary factors favor granting discovery. | Factors weigh in Chevron’s favor due to lack of receptivity and potential irrelevance of sources if denied. | Respondent argues limited receptivity and potential burden; seeks to limit discovery. | Overall, factors weigh in favor of granting discovery. |
| Whether newly amended Rule 26 applies to this § 1782 request. | Rule 26 amendments are applicable and should govern, with continued opportunity to obtain discovery. | Brazil argues Rule 26 applies but raises burdens or timing concerns. | Yes; new Rule 26 applies to this proceeding. |
| Whether crime-fraud exception bars discovery of Respondent or interacts with privilege. | Chevron argues crime-fraud exception defeats attorney-client privilege for Respondent’s work tied to Cabrera. | Respondent contends no crime or fraud established and privilege should be maintained. | Crime-fraud exception does not apply; privilege remains intact here. |
| Whether Respondent is a testifying expert and subject to Rule 26(b)(4) discovery. | Respondent provided an expert report in Lago Agrio, making him a testifying expert. | Respondent contends discovery should be limited if not a testifying expert for UNCITRAL. | Respondent qualifies as a testifying expert for Lago Agrio; discovery permitted under Rule 26(b)(4). |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (four discretionary Intel factors guide § 1782 rulings)
- In re Bayer AG, 146 F.3d 188 (3d Cir. 1998) (foreign tribunal receptivity and discovery considerations)
- In re Application of Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008) (treatment of foreign tribunals under § 1782)
- In re Veiga, 746 F. Supp. 2d 8 (D.D.C. 2010) (discovery in § 1782 for international arbitration)
- Chevron Corp. v. Camp, 2010 WL 3418394 (W.D.N.C. 2010) (testimony and discovery principles in § 1782 proceedings)