Republic of Ecuador v. for the Issuance of a Subpoena Under 28 U.S.C. § 1782(A)
735 F.3d 1179
| 10th Cir. | 2013Background
- Chevron appeals a district court order compelling production under 28 U.S.C. § 1782 in a discovery dispute for a foreign proceeding.
- The Republic of Ecuador seeks evidence to defend an $18.2 billion Lago Agrio judgment against Chevron, with investment treaty arbitration pending.
- Numerous § 1782 applications were filed nationwide; this case centers on a Colorado application seeking documents from Bjorn Bjorkman, a Chevron expert.
- Chevron objected, arguing 2010 Rule 26 amendments protect work product and expert materials beyond the narrow exceptions.
- The magistrate judge and district court held that Rule 26(b)(4)(B) and (C) provide exclusive protections, limiting disclosure; the October 4, 2012 order was the final district-court ruling, while January and April 2013 orders were not final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of the § 1782 order | Republic argues order is final despite subsequent magistrate orders. | Chevron contends there are ongoing proceedings; no final district order. | The October 4, 2012 order is the final district court decision. |
| Effect of 2010 Rule 26 amendments on expert materials | Republic contends amendments broaden protection of expert work product. | Chevron argues amendments restore broad protection for expert materials. | amendments do not broadly protect expert materials; exclusive protections remain under Rule 26(b)(4). |
| Scope of Rule 26(b)(4) (B) and (C) as exclusive protections | Republic relies on broader work-product protection for expert materials. | Chevron argues Rule 26(b)(3) protects more extensively. | Rules 26(b)(4)(B) and (C) are the exclusive protections for trial-preparation materials; Rule 26(b)(3) does not immunize expert materials beyond those provisions. |
Key Cases Cited
- Nobles, United States v., 422 U.S. 225 (1975) (work-product protects attorney’s mental impressions and those of agents)
- Hickman v. Taylor, 329 U.S. 495 (1947) (core of work-product doctrine is attorney’s mental impressions)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (work-product doctrine incorporated into Rule 26 scope)
- Elm Grove Coal Co. v. Director, O.W.C.P., 480 F.3d 278 (4th Cir. 2007) (discusses 2010 Rule 26(a)(2)(B)(ii) change and expert discovery)
- In re Pioneer Hi-Bred Int., Inc., 238 F.3d 1370 (Fed. Cir. 2001) (attorney–expert communications discovery standards)
- Phillips v. Beierwaltes, 466 F.3d 1217 (10th Cir. 2006) (§ 1782 orders are final and appealable when district has ruled on evidentiary requests)
- Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011) (finality of district court discovery orders in § 1782 context)
- In re Premises Located at 840 140th Ave. NE, 634 F.3d 566 (9th Cir. 2011) (finality of discovery orders when no further proceedings are contemplated)