In Re Veiga
746 F. Supp. 2d 27
D.D.C.2010Background
- Court grants motion to compel discovery from Respondent Alberto Wray in 1782(a) proceedings by Veiga, Pallares, and Chevron.
- Prior orders authorized subpoenas for documents and deposition in DC by November 3, 2010; Lago Agrio Plaintiffs and Republic intervened as Interested Parties.
- Respondent served subpoenas Oct. 21–22, 2010; production and privilege logs followed, with evolving iterations (372 then 447 documents).
- Deposition set for Nov. 2, 2010; petitioners face timing pressures due to related proceedings in Ecuador and BIT Arbitration.
- Three privileges are asserted: foreign Article 335 of the Ecuadorian Code, federal attorney-client, and federal work product; issue is whether these rights bar production under § 1782(a).
- Court credits need for extraordinary proof when invoking foreign privilege and requires competent evidence for US privileges; ultimately orders production subject to protective measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 335(1) bars production under § 1782(a). | Veiga/Republic contend Article 335(1) shields documents. | Wray/Interested Parties rely on broad Article 335(1) to withhold material. | Article 335(1) does not unequivocally support broad protection; produce. |
| Whether attorney-client privilege applies to Respondent's communications. | Documents involve confidential legal advice; privilege should apply where properly invoked. | Privilege justified given role as counsel in multiple proceedings. | Respondent failed to provide competent, specific proof; privilege not established for those communications; produce. |
| Whether work product privilege applies and was properly maintained for Respondent's communications. | Work product protects documents prepared for litigation; many withheld are core materials. | Documents prepared for litigation; maintained secrecy; covered by work product. | Respondent's showing insufficiently connected to litigation purposes; must produce. |
| Whether documents involving testifying experts and certain third parties are discoverable. | Communications with identified testifying experts should be fully disclosed. | Some third-party communications may be privileged or protected. | Documents involving testifying experts (Calmbacher, Camino, Davila) are discoverable; others fall within overlapping categories and must be produced where applicable. |
Key Cases Cited
- In re Federation Internationale de Basketball, 117 F. Supp. 2d 403 (S.D.N.Y. 2000) (federal common law governs privilege in § 1782(a) actions)
- Chevron Corp. v. Stratus Consulting, Inc., 619 F.3d 373 (5th Cir. 2010) (foreign privilege exception requires clear authoritative proof)
- U.S. v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (maintenance of secrecy standard for waiver of work product)
- In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm'n, 439 F.3d 740 (D.C. Cir. 2006) (burden to show privilege supported by competent evidence)