In Re Chevron Corp.
633 F.3d 153
| 3rd Cir. | 2011Background
- Chevron sought discovery under 28 U.S.C. § 1782 from UBR and Villao to obtain documents for use in the Lago Agrio damages litigation and BIT arbitration.
- District Court granted Chevron discovery requests as to UBR, ordering production of documents transmitted to the court-appointed global damages expert Cabrera.
- Appellants argued privilege (work product and attorney-client) barred disclosure and that crime-fraud exception should not apply to all communications.
- Chevron argued Cabrera's report incorporated materials from UBR and Villao, suggesting a conduit role and potential bias.
- Court acknowledged potential relevance to BIT arbitration and Lago Agrio proceedings, applying Intel factors to determine discovery propriety.
- On appeal, Court vacated in part the district court’s scope of the crime-fraud ruling and remanded for in camera review to assess applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 discovery may be ordered for use in foreign proceedings. | Chevron seeks aid to obtain evidence for Lago Agrio and BIT. | Appellants challenge scope and comity concerns. | Yes, discovery permitted for use in foreign proceedings. |
| Whether disclosure to Cabrera waives work-product and attorney-client protections. | Disclosures were authorized by Lago Agrio process and intended to support credibility. | Disclosure to Cabrera should not waive protections. | Waiver found for documents transmitted to Cabrera; protections waived for those documents. |
| Whether the crime-fraud exception applies to the attorney-client privilege in this case. | Villao/Cabrera involvement and dual employment suggest fraud; privilege should yield. | Insufficient showing of communications in furtherance of fraud; exception not fully established. | Crime-fraud exception not fully established; remanded for in camera review to determine applicability. |
| Whether Intel factors support or bar § 1782 discovery here. | First three Intel factors weigh in favor; district court did not abuse discretion. | Challenged receptivity and potential circumvention concerns. | Intel factors favor allowing discovery; no abuse of discretion, subject to remand for privacy issues. |
Key Cases Cited
- Intel Corp. v. AMD, 542 U.S. 241 (U.S. 2004) (provides Intel factors and limits on 1782(a) discretion)
- Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999) (burden on objecting party to show foreign offense or other warrant of denial)
- In re Impounded, 241 F.3d 308 (3d Cir. 2001) (standard for reviewing crime-fraud and privilege issues)
- In re Grand Jury Subpoena, 223 F.3d 213 (3d Cir. 2000) (preliminary framework for crime-fraud exception elements)
- In re Grand Jury Proceedings, 604 F.2d 798 (3d Cir. 1979) (purpose of attorney-client privilege and its limits)
- United States v. Zolin, 491 U.S. 554 (U.S. 1989) (in camera review to determine crime-fraud applicability to privilege)
- Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991) (work-product vs. attorney-client privilege distinctions and waivers)