In Re Chevron Corp.
650 F.3d 276
| 3rd Cir. | 2011Background
- Chevron sought 1782 discovery from Kohn and KSG to obtain materials for Lago Agrio litigation, Ecuadorian criminal proceedings, and BIT arbitration.
- Crude documentary crew filmed attorney meetings, allegedly exposing privileged communications between Ecuadorian plaintiffs and their lawyers, including Kohn.
- District Court held Crude filming caused a broad subject-matter waiver of attorney-client privilege for Kohn's Lago Agrio communications and rejected Ecuadorian privilege defenses.
- Lago Agrio Court awarded Chevron and Ecuadorian plaintiffs substantial damages against Chevron; BIT arbitration sought to stay enforcement and challenge the judgment.
- Chevron filed multiple 1782 actions; Kohn and KSG filed a declaratory judgment action; the district court stayed ruling on privilege issues pending appeal.
- Third Circuit reverses, concluding Crude did not attach privilege to the Crude materials because presence of filmmakers meant no privilege, and remands to consider crime-fraud exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crude filming destroyed the attorney-client privilege | Ecuadorian plaintiffs claim presence of strangers defeats privilege | Chevron argues waiver of privilege due to public disclosure is proper | No privilege attached; no subject-matter waiver for Kohn's files |
| Whether the district court properly applied waiver standards | Waiver should apply only to disclosed communications within Crude context | Fairness supports broad waiver for selective disclosures | Waiver not applicable; reverse on waiver ground |
| Whether crime-fraud exception should be considered on remand | Crime-fraud exception could render communications discoverable | District court should assess crime-fraud exception as a fact-intensive issue | Remand for district court to decide applicability of crime-fraud exception |
| Whether the district court erred in declining to address other privilege doctrines | Community-of-interest doctrine should shield communications | Not necessary to reach these issues given waiver ruling | Declined as obiter; not necessary to reach other theories |
Key Cases Cited
- In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007) (elements of attorney-client privilege; confidence requirement)
- In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006) (crime-fraud exception standards; prima facie showing)
- Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d 151 (3d Cir. 1998) (fact-intensive nature of crime-fraud analysis; remand guidance)
- Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991) (fairness considerations in waiver; extrajudicial disclosures)
- In re Bayer AG, 146 F.3d 188 (3d Cir. 1998) (scope of 1782 discovery; appropriate factors for court discretion)
- Int'l Business Machines Corp. v. Levin, 542 U.S. 241 (2004) (Intel factors governing 1782 discovery requests)