In re the Republic of Ecuador
280 F.R.D. 506
N.D. Cal.2012Background
- Republic seeks to compel production of documents from Kelsh and Exponent in 1782 proceedings; amended Rule 26 applies to these proceedings; Kelsh was retained as an expert and provided reports for Lago Agrio and BIT Arbitration; disputed scope includes work product and attorney-client privilege protections for expert materials; the court previously ordered in camera review of a large privilege log; the court must decide whether amended Rule 26 governs, whether Chevron is estopped, whether Kelsh is a reporting or non-reporting expert, and what documents are privileged or discoverable.
- The BIT Arbitration commenced earlier and involved Lago Agrio claims against Chevron; Kelsh served as a testifying expert and provided reports, which Chevron referenced in the BIT and Lago Agrio litigation; the Republic asserts thousands of documents were improperly withheld; Respondents argue amended Rule 26 applies and certain materials remain protected; the court conducted in camera review and will order production of certain categories.
- Decisions include whether amended Rule 26 governs the dispute, Kelsh’s status as a testifying expert, that Chevron is not judicially estopped from asserting privileges, and which documents are protected or producible under the amended Rule 26; the court ultimately grants in part and denies in part the Republic’s motion to compel.
- The court held that amended Rule 26 applies; Kelsh is a testifying/retained expert under Rule 26(a)(2)(B); Chevron is not judicially estopped from asserting privileges; and several categories of documents must be produced or are not protected as work product under the amended rule, with specific ordering of production and amendment of privilege logs granted.
- The Republic’s motion to compel is granted in part and denied in part, requiring production of notes, outlines, memoranda, presentations, and other items not protected as work product, and certain communications between Kelsh/Exponent and non-attorney Chevron employees and third-party consultants, while preserving protections where applicable under Rule 26(b)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amended Rule 26 governs this dispute | Republic urges amended Rule 26 applies | Respondents contend pre-amendment rule should apply | Amended Rule 26 applies |
| Kelsh is a testifying expert under Rule 26(a)(2)(B) | Kelsh treated as testifying expert for Lago Agrio and BIT | Kelsh is a reporting expert whose communications are protected | Kelsh is a testifying expert under Rule 26(a)(2)(B) |
| Chevron judicial estoppel from asserting privileges | Chevron previously asserted no privilege under Rule 26 | Amendments govern further proceedings | Chevron not judicially estopped |
| Scope of work product and discoverability under amended Rule 26 | Documents by Kelsh/Exponent and related communications are discoverable | Many items are protected as work product or attorney-client communications | Certain drafts/notes/memos not protected; some communications with non-attorney Chevron employees not protected; some categories must be produced |
| What specific documents must be produced | Broad production of privileged-logged items | Maintaining protections for drafts and communications | Produce notes, outlines, memoranda, presentations, reviews mislabelled as draft reports; disclose communications involving non-attorney Chevron employees, third-party consultants, and Lago Agrio testifying experts; amend privilege log accordingly |
Key Cases Cited
- United States v. Nobles, 422 U.S. 225 (U.S. 1975) (work product protects attorney mental processes)
- In re Grand Jury Subpoena (Torf), 357 F.3d 900 (9th Cir. 2004) (work product doctrine definition and scope)
- In re California Pub. Utils. Comm’n, 892 F.2d 778 (9th Cir. 1989) (test for work product protection and substantial need)
- Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (treatment of non-trial-retained experts under Rule 26(b)(4))
- Penn Nat’l Ins. Co. v. HNI Corp., 245 F.R.D. 190 (M.D. Pa. 2007) (discussion of expert communications not protected as work product)
- United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D. Cal. 1985) (narrowing of work product protections)