In Re Chevron Corp.
749 F. Supp. 2d 141
| S.D.N.Y. | 2010Background
- Chevron file 1782 actions in SDNY to obtain US evidence for Lago Agrio and related arbitration.
- Steven Donziger centrally involved; alleged to have coordinated with Lago Agrio plaintiffs and GOE, including public-relations, lobbying, and possible misconduct.
- Lago Agrio global damages report (Cabrera) potentially tainted by ex parte contacts and plaintiffs’ consultants.
- Plea that Cabrera’s appointment and the global assessment were procured or influenced by plaintiffs; criminal prosecutions in Ecuador implicated.
- Court previously granted in part, ordering Donziger to respond on the merits with privilege objections to be adjudicated; this opinion provides the full reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1782 discretionary factors favor discovery. | Chevron/Individual Petitioners: discovery serves to uncover fraud/misconduct tainting Ecuadorian proceedings. | Donziger: discovery should be quashed to protect attorney-client privilege and foreign proceedings' integrity. | Yes, discovery warranted; discretionary factors favor relief despite privilege concerns. |
| Whether Donziger may be deposed as adverse counsel. | Donziger is a central figure with unique knowledge; deposition is essential. | Adverse-counsel deposition risks privilege/work-product issues; normally disfavored. | Deposition allowed; privilege claims to be adjudicated with a special master. |
| Scope of subpoenas—whether to modify or limit the requests. | Broadly seek documents/testimony involving Cabrera, GOE, courts, and related actors. | Requests overly broad, especially regarding privileged materials and Cabrera. | Modification rejected; subpoenas kept broadly framed to encompass critical evidence. |
| Whether attorney-client privilege/work-product protection applies to Donziger's materials. | Even if Donziger is a lawyer, crime-fraud and non-legal activities reduce protection; need for non‑privileged material. | Donziger's communications are privileged/work-product; majority materials shielded. | Privilege claims require adjudication; not a blanket denial of discovery; crime-fraud considerations may erode protections. |
Key Cases Cited
- In re Friedman, 350 F.3d 65 (2d Cir. 2003) (flexible approach to deposition of adversary counsel; criteria balancing)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (S. Ct. 2004) (statutory/discretionary framework for 1782; jurisdictional factors)
- Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) (twin aims of 1782; discretion in granting discovery)
- In re Esses, 101 F.3d 873 (2d Cir. 1996) (foundation for 1782 discretionary analysis)
- United States v. Const. Prod. Research, Inc., 73 F.3d 464 (2d Cir. 1996) (attorney-client privilege framework; dynamic assessment of purpose of communications)