In re Chiquita Brands International, Inc. Alien Tort Statute & Shareholder Derivative Litigation, 270 F. Supp. 3d 1332

Chiquita produced numerous documents (including attorney-client and work-product materials) to the DOJ during a 2003–2007 criminal investigation and plea negotiations that culminated in a 2007 guilty plea for transactions with a designated terrorist organization.
Early Chiquita letters to DOJ described voluntary productions and referenced a “limited non-waiver” understanding while promising to provide requested materials to cooperate.
DOJ later served a grand jury subpoena and pressed for production of privileged materials; DOJ correspondence made clear it expected Chiquita to honor prior cooperation commitments.
Chiquita ultimately produced the disputed privileged materials, later arguing that production was coerced by prosecutorial pressure (including the Thompson Memorandum charging guidance) and therefore did not waive privilege for third-party civil litigants.
Plaintiffs (ATS/ATA plaintiffs) moved to compel production of documents previously given to DOJ and specifically moved to compel the Valverde and Olivo memoranda, arguing waiver by prior production and that later claw-back efforts were ineffective.
The court concluded Chiquita’s disclosures to DOJ were voluntary (motivated by self-interest in leniency), so any attorney-client and work-product privileges were waived; the court ordered production of the DOJ-produced documents and granted the motion to compel the Valverde and Olivo memoranda.

Issue	Plaintiffs' Argument	Chiquita's Argument	Held
Whether producing privileged materials to DOJ waived attorney-client and work-product protections as to third-party civil litigants	Production to DOJ was voluntary and made to obtain leniency, so privilege was waived	Production was coerced/involuntary because DOJ pressured Chiquita (and relied on Thompson Memorandum), so no valid waiver	Waiver found: production was voluntary/self-interested; privilege waived and objections overruled
Whether Chiquita must produce the Valverde and Olivo memoranda (specific documents)	Those memoranda were included in DOJ production and thus waived; claw-back is ineffective	Claimed inadvertent release or later claw-back preserves privilege	Motion to compel granted on waiver grounds; court did not need to reach inadvertence/claw-back arguments

Upjohn Co. v. United States, 449 U.S. 383 (privilege protects confidential attorney-client communications to encourage full disclosure)
United States v. Nobles, 422 U.S. 225 (work-product doctrine protects attorney mental impressions)
United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir.) (voluntary disclosures to law enforcement effect waiver even if motivated by self-interest)
Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir.) (voluntary disclosures to SEC/DOJ can waive privilege and work product)
United States v. de la Jara, 973 F.2d 746 (9th Cir.) (involuntary disclosures may not automatically waive privilege)
In re Grand Jury Proceedings (Nobles progeny), 601 F.2d 162 (5th Cir.) (work-product scope and waiver principles)
Jane Doe No. 1 v. United States, 749 F.3d 999 (11th Cir.) (work-product waiver where documents voluntarily sent to U.S. Attorneys during plea negotiations)