In Re Chevron Corporation
749 F. Supp. 2d 170
| S.D.N.Y. | 2010Background
- Lago Agrio plaintiffs seek about $113 billion for alleged Ecuadoran environmental pollution by Texaco, now under Chevron.
- Chevron and individual petitioners seek U.S. discovery under 28 U.S.C. §1782 to expose alleged fraud in Ecuadorian civil and criminal proceedings.
- Donziger produced a 2,000+ page privilege log claiming privilege on 8,652 documents, many involving media or public relations actors.
- The court previously issued a Summary Order (Oct. 20, 2010) holding privilege claims waived and directing production forthwith, appointing a special master for deposition-related issues.
- Chevron II (Nov. 5, 2010) affirmed the waiver of privilege and did not modify the Summary Order’s directive to produce documents, while the Lago Agrio plaintiffs and Donziger appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may modify the waiver and compel production on the merits. | Chevron seeks to enforce waiver ruling and require production; argues waiver should not bar merits review. | Lago Agrio plaintiffs argue appellate pendency divests district court of power to alter waiver or compel production. | Court may proceed to adjudicate privilege waivers and compel production. |
| Whether Donziger waived privilege by not timely submitting a privilege log. | Chevron and petitioners contend waiver due to failure to log, despite later log. | Lago Agrio plaintiffs maintain no waiver occurred or should be excused. | Privilege claims waived due to failure to timely lodge log and related rule compliance. |
| Whether the Republic of Ecuador may intervene to assert privilege interests. | Ecuador seeks intervention to protect its privilege interests. | Intervention would be untimely and prejudicial; no adequate justification. | Motion to intervene denied. |
| What is the appropriate timing and scope of production of documents. | Produce all responsive documents forthwith, including those listed in the belated log. | Limit production to non-privileged or adjudicated materials, depending on merits. | Chevron and petitioners’ motions granted; Donziger must produce all responsive documents forthwith. |
Key Cases Cited
- United States v. Rodgers, 101 F.3d 247 (2d Cir.1996) (divestiture of jurisdiction rules; timely appeals affect district court control)
- Burlington Northern & Santa Fe Railway Co. v. United States District Court, 408 F.3d 1142 (9th Cir.2005) (considerations for failure to submit timely privilege log; holistic reasonableness factors)
- Leonhard v. United States, 633 F.2d 599 (2d Cir.1980) (divestiture and waiver considerations in appellate context)