In re Application of Ricardo Reis Veiga

• Decision Date: 03 November 2010
• Docket Number: Array
• Parties: In re Application of Ricardo Reis VEIGA, and Rodrigo Pérez Pallares, Applicants,To Issue a Subpoena for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding.In re Application of Chevron Corporation, Applicant,To Issue a Subpoena for the Taking of a Deposition and the Production of Documents.
• Court: U.S. District Court — District of Columbia

746 F.Supp.2d 27

In re Application of Ricardo Reis VEIGA, and Rodrigo Pérez Pallares, Applicants,To Issue a Subpoena for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding.In re Application of Chevron Corporation, Applicant,To Issue a Subpoena for the Taking of a Deposition and the Production of Documents.

Misc. Action Nos. 10–370(CKK)(DAR)

10–371(CKK)(DAR)

United States District Court, District of Columbia.

Nov. 3, 2010.

Thomas Leon Cubbage, III, Covington & Burling, Washington, DC, Jason P. Criss, John Han, Covington & Burling LLP, New York, NY, for Ricardo Reis Veiga.Andres Rivero, Jorge A. Mestre, Paul Edouard Dans, Rivero Mestre & Castro, Coral Gables, FL, for Rodrigo Pérez Pallares.Eric W. Bloom, Winston & Strawn LLP, Susan L. Burke, Burke Oneil LLC, Washington, DC, for Interested Parties.William Francis Coffield, IV, Coffield Law Group LLP, Washington, DC, for Respondents.Luke Andrew Sobota, Thomas F. Cullen, Louis K. Fisher, Jones Day, Thomas G. Hungar, Gibson, Dunn & Crutcher, LLP, Washington, DC, for Chevron Corporation.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Presently before the Court is the Joint Motion by Chevron Corporation (“Chevron”) and two of its attorneys, Rodrigo Pérez Pallares (“Pérez”) and Ricardo Reis Veiga (“Veiga”) (collectively, “Applicants”), to Compel Discovery from Respondent Alberto Wray (“Respondent”). See Applicants' Joint Mot. to Compel Disc. from Alberto Wray and Mot. for Expedited Consideration (“Mot. to Compel.”), Docket No. [66].¹ For the reasons set forth below, the Court shall GRANT Applicant's Motion to Compel, subject to certain conditions and limitations.

I. BACKGROUND ²

Pursuant to 28 U.S.C. § 1782(a), this Court previously granted two applications—one by Pérez and Veiga and a second by Chevron—for the issuance of subpoenas requiring Respondent to produce documents and appear at a deposition in Washington, D.C. on or before November 3, 2010. See Order (Oct. 20, 2010) (Pérez–Veiga Application), Docket No. [60]; Order (Oct. 20, 2010) (Chevron Application), No. 10 Misc. 371, Docket No. [69]. In the course of litigating the merits of those applications, the Republic of Ecuador (the “Republic”) and the plaintiffs in an ongoing litigation against Chevron in Lago Agrio, Ecuador (the “Lago Agrio Plaintiffs”) intervened as interested parties (collectively, the “Interested Parties”).

Applicants claim to have served subpoenas consistent with this Court's prior orders upon Respondent on Thursday, October 21, 2010 and Friday, October 22, 2010— i.e., the two days following the Court's rulings—requesting the production of responsive documents on or before Tuesday, October 26, 2010, and noticing Respondent's deposition to begin on November 2, 2010. See Mot. to Compel at 1. Respondent does not dispute that he has been properly served. Rather, Respondent's counsel claims to have commenced reviewing potentially responsive documents and preparing a privilege log after returning from out of town on the afternoon of Monday, October 25, 2010. See Resp't Alberto Wray's Opp'n to the Applicants' Joint Mot. to Compel (“Resp't Opp'n”), Docket No. [69], at 2. Meanwhile, Respondent avers—and Applicants do not dispute—that the parties were simultaneously engaging in an ongoing dialogue with respect to both the anticipated timing of Respondent's production and his assertion of certain privileges as a basis for withholding documents. See Resp't Opp'n at 2.

On Wednesday, October 27, 2010, Respondent produced a relatively small number of documents along with the first iteration of a privilege log identifying 372 documents withheld on the basis of both foreign and United States privileges. See Mot. to Compel at 1–2; Sixth Suppl. Fisher Decl., Ex. 110 (Oct. 27, 2010 Privilege Log), Docket No. [66–4]. During a meet-and-confer session held on October 28, 2010, Applicants apparently expressed their dissatisfaction with the first iteration of Respondent's privilege log and Respondent's broad claims of privilege. See Resp't Opp'n at 2. The following day, Friday, October 29, 2010, Applicants filed the present Motion to Compel.

Notably, Respondent's deposition was scheduled to commence the following Tuesday, on November 2, 2010. Moreover, Pérez and Veiga were scheduled to appear in Quito, Ecuador for a preliminary hearing in the criminal proceedings brought against them little more than a week thereafter, on November 10, 2010, at which they may seek to introduce or discuss the purportedly exculpatory evidence sought through this action. See Not. that Prelim. Hr'g Against Applicants Is Set for November 10, 2010 in Quito, Ecuador, Docket No. [59]. ³ In light of these circumstances, the same day it received Applicants' Motion to Compel, the Court issued a Minute Order establishing an expedited briefing schedule. See Min. Order (Oct. 29, 2010). In so doing, the Court also set forth certain parameters for the parties' briefing, only some of which merit mentioning here. First, Respondent was expressly directed to “correlate any claimed privilege(s) with specific documents ... and articulate with particularity the basis for invoking the claimed privilege.” Id. Second, the parties were directed to “raise any and all arguments they want[ed] the Court to consider in their [responsive] papers,” and were warned that the Court would “not hunt down arguments or authorities referenced in other papers.” Id.

Shortly after the issuance of the Court's Minute Order, Respondent produced a revised privilege log, the contents of which the Court has not seen. See Resp't Opp'n at 3 and Ex. 2 (Oct. 29, 2010 E-mail from W. Coffield to L. Fisher et al.), Docket No. [69–2]. Two days later, on Sunday, October 31, 2010, Respondent produced a third and final iteration of his privilege log (the “Privilege Log”), identifying a total of 447 documents withheld on the basis of both foreign and United States privileges, accompanied by an unsworn letter from Respondent's counsel briefly identifying the individuals whose names appear on the privilege log (the “Cover Letter”), and asking that the Cover letter be incorporated into the Privilege Log. See Resp't Opp'n Ex. 3 (Oct. 31, 2010 Ltr. from W. Coffield to T. Cubbage, III et al. and Oct. 31, 2010 Privilege Log), Docket No. [69–3].⁴

Consistent with the Court's briefing schedule, Respondent filed his opposition to Applicants' Motion to Compel the morning of November 1, 2010. See Resp't Opp'n. The Lago Agrio Plaintiffs and the Republic, for their part, filed separate oppositions that same morning. See Interested Parties Ecuadorian Plaintiffs' Opp'n to Applicants' Joint Mot. to Compel (“Lago Agrio Pls.' Opp'n”), Docket No. [67]; Republic of Ecuador's Opp'n to Applicants' Joint Mot. to Compel Disc. from Alberto Wray (“Republic's Opp'n”), Docket No. [68]. Later that afternoon, Applicants filed a timely reply. See Applicants' Reply in Supp. of Their Joint Mot. to Compel Disc. from Alberto Wray (“Applicants' Reply”), Docket No. [70]. Upon reviewing the parties' papers, Respondent's counsel was contacted by telephone and asked to forward to the Court four documents—namely, Documents 397–400 on Respondent's Privilege Log. See Min. Entry (Nov. 1, 2010). Those documents were provided to the Court for ex parte, in camera review. Id.

The Court has considered the parties' respective papers, including the attachments and exhibits thereto, and expresses its gratitude to the parties for their prompt filings. The motion is now fully briefed and ripe for adjudication, and the Court now turns to the merits of the present motion, which it has considered on an expedited basis and on the record created by the parties.

II. LEGAL STANDARD

Even if discovery is permissible under 28 U.S.C. § 1782(a),⁵ an applicant may not seek information that is immune from discovery. Indeed, the statute expressly cautions that “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” 28 U.S.C. § 1782(a).

As a threshold matter, the Court must address the applicable legal framework. Because the jurisdictional basis for this action rests on a federal statute, federal common law governs any assertions of privilege. See In re Federation Internationale de Basketball, 117 F.Supp.2d 403, 407 (S.D.N.Y.2000); accord In re Application of Christensen, 2006 WL 278169, at *1 (S.D.N.Y. Feb. 3, 2006). Nevertheless, separate and apart from whatever privileges may be available under the federal common law, courts have concluded—and this Court agrees—that the protections afforded by § 1782(a) also extend to privileges recognized by foreign law, albeit only in certain narrow and circumscribed circumstances, as described more fully below. Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir.2010). In this case, three separate privileges have been claimed with respect to the withheld documents: (a) a foreign privilege premised upon Article 335 of the Ecuadorian Code of Judicial Function; (b) the federal attorney-client privilege; and (c) the federal attorney work product privilege. ⁶ Although the Court shall address each of these in greater specificity elsewhere, the Court sets out the general principles governing the assertion of these privileges in the context of the present action.

A. Assertions of Foreign Privileges within a Section 1782(a) Proceeding

Although the protections afforded by § 1782(a) may extend to privileges recognized by foreign law, consonant with courts' reticence to delve into complex questions of foreign law, parties are generally required to provide clear and authoritative proof that a foreign tribunal would reject evidence pursuant to a foreign privilege before the court will invoke the privilege to bar discovery. Ecuadorian Plaintiffs, 619 F.3d at 378; accord In re Request for Judicial Assistance from the City Court of Jönköping, Sweden, ...