762 F. Supp. 2d 242
D. Mass.2010Background
- Chevron and Pérez/Veiga filed 28 U.S.C. § 1782 applications to obtain discovery from Cristóbal Bonifaz for use in Ecuadorian proceedings.
- The targeted foreign proceedings include the Lago Agrio Litigation in Ecuador, a BIT Treaty Arbitration, and an Ecuadorian criminal case involving Pérez and Veiga.
- Bonifaz formerly represented the Ecuador Plaintiffs and later advised the Republic; he is a Massachusetts resident.
- The court previously granted permissions against Ecuadorian tribunals but limited scope due to privilege concerns; the current memorandum narrows the scope and applies privilege rules.
- The court denies Chevron’s request for discovery related to the Treaty Arbitration, but grants discovery regarding the Lago Agrio Litigation, subject to privilege and scope limits.
- Privilege and crime-fraud considerations limit disclosure; the court finds no established crime-fraud exception to compel Bonifaz’s testimony or non-privileged documents beyond the defined topics.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 threshold criteria are satisfied | Chevron and Pérez/Veiga satisfy residency, foreign-use, interest, and non-privilege requirements. | Opposing parties argue potential privilege and receptivity concerns may bar discovery. | Threshold criteria met for Lago Agrio and criminal proceedings; inquiry permitted within scope. |
| Whether Intel discretionary factors favor discovery | Discovery needed due to nonparticipants and potential relevance to foreign proceedings. | Receptivity of foreign tribunal uncertain; risk of circumvention of foreign procedures. | Factors weigh in favor of granting limited discovery for Lago Agrio; skepticism remains for Treaty Arbitration. |
| Scope of Bonifaz discovery and permissible topics | Bonifaz should produce documents and testify on specified topics related to collusion, charges, and expert issues. | Privilege and work-product protections restrict disclosure. | Discovery limited to non-privileged documents and testimony on four identified topics; deposition allowed with privilege reservations. |
| Whether privilege and crime-fraud exceptions override protections | Crime-fraud exception could permit disclosure of evidence showing wrongdoing. | Privilege and work-product protections should be upheld absent strong crime-fraud showing. | Crime-fraud exception not established; privilege preserved; disclosures limited to allowable topics. |
| Treatment of Treaty Arbitration discovery | Need for immediate discovery to aid Treaty Arbitration merits and jurisdictional issues. | Arbitration processes may render U.S. discovery unnecessary or inappropriate. | Denied without prejudice as to Treaty Arbitration; not appropriate to grant in this proceeding, given uncertainties about receptivity. |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (establishes threshold criteria and discretionary factors for § 1782)
- In re Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008) (court requires authoritative proof of foreign receptivity, when possible)
- In re Chevron Corp., Shefftz, 754 F. Supp. 2d 254 (D. Mass. 2010) (example denying similar 1782 discovery; procedural posture guidance)
- Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995) (foreign receptivity and discovery limits considerations)
- In re Asta Medica, S.A., 981 F.2d 1 (1st Cir. 1992) (precedent on exploration of foreign discovery without sovereignty concerns)
- Boreri v. Fiat S.p.A., 763 F.2d 17 (1st Cir. 1985) (foreign discovery and the impact on sovereignty considerations)