Republic of Ecuador v. Douglas MacKay
742 F.3d 860
9th Cir.2014Background
- Chevron appeals two district court orders requiring discovery from Mackay and Kelsh under § 1782 for use in BIT Arbitration.
- Applicants sought discovery of materials Chevron withheld as work product, arguing 2010 Rule 26 amendments did not alter scope for expert materials.
- The Lago Agrio case involved environmental claims, independent expert analyses, and a large damages judgment against Chevron.
- Before 2010 amendments, there was widely divergent treatment of testifying expert materials under Rule 26(b)(3) and related provisions.
- The district courts granted discovery with certain privileges and drafts excepted, leading Chevron to seek appellate review.
- The Ninth Circuit analyzes Rule 26 to decide whether Rule 26(b)(3) provides presumptive protection for all testifying expert materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 26(b)(3) presumptively protect all testifying expert materials? | Chevron argues 26(b)(3) protects all testifying expert materials as trial preparation. | Republic argues 26(b)(3) protection is not all-encompassing for experts and is superseded by 26(b)(4) framework. | No presumptive protection for all testifying expert materials. |
| Did the 2010 amendments restructure Rule 26 to extend protection to all expert materials? | Chevron contends amendments expanded protection to all expert materials. | Republic contends amendments targeted only drafts and attorney–expert communications with three exceptions. | Amendments did not restructure to protect all expert materials. |
| Are the disputed documents outside the 2010 amendments’ protections and thus discoverable? | Chevron argues many materials remain protected work product. | Republic argues many documents fall outside expert communications and drafts protections. | |
| The documents are not automatically protected; the district court decisions are affirmed. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (Supreme Court 1947) (work product originated to protect attorney mental impressions)
- Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) (dispute over breadth of expert material disclosure under work product)
- In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Federal Circuit 2001) (discovery scope and relation of expert materials to work product)
- United States v. Nobles, 422 U.S. 225 (Supreme Court 1975) (waiver concepts in discovery depending on testimony)
- Sprague v. Director, 688 F.2d 862 (1st Cir. 1982) (interpretation of materials prepared by experts for counsel)
- Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (work product protection and discovery of information held by testifying experts)
- In re Cendent Corp. Sec. Litig., 343 F.3d 658 (3d Cir. 2003) (cross-references between 26(b)(3) and 26(b)(4) implications)
- Naranjo, 667 F.3d 232 (2d Cir. 2012) (ties to Lago Agrio litigation and disclosures involving expert materials)
- Bjorkman, 735 F.3d 1179 (10th Cir. 2013) (circuit split on work product protection for expert materials)
- Hinchee, Unpublished WL (11th Cir. 2013) (affirmed non-presumptive protection approach for expert materials)