Payaguaje v. Page (In re Naranjo)
| Decision Date | 24 September 2014 |
| Docket Number | 13–2028.,Nos. 13–1382,s. 13–1382 |
| Citation | 768 F.3d 332 |
| Parties | In re Hugo Gerardo Camacho NARANJO; Javier Piaguaje Payaguaje, Appellants. Chevron Corporation, Petitioner–Appellee, v. Aaron Marr Page; Daria Fisher Page, Respondents–Appellants. Chevron Corporation, Petitioner–Appellee, v. Aaron Marr Page, Respondent–Appellant, and Ecuadorian Plaintiffs, Parties–in–Interest–Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED:James Edward Tyrrell, Jr., Patton Boggs LLP, Newark, New Jersey, for Appellants. Thomas Henderson Dupree, Jr., Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellee. ON BRIEF:Christopher J. Gowen, The Gowen Group Law Office, PLLC, Washington, D.C., for Appellants Aaron Marr Page and Daria Fisher Page. Richard D. Carter, Carter & Coleman, PLC, Alexandria, Virginia, for Appellants Hugo Gerardo Camacho Naranjo, Javier Piaguaje Payaguaje, Aaron Marr Page, Daria Fisher Page, and Parties–in–Interest–Appellants Ecuadorian Plaintiffs. Peter E. Seley, Claudia M. Barrett, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellee.
Before NIEMEYER, KING, and AGEE, Circuit Judges.
These consolidated appeals stem from a multi-billion-dollar judgment rendered in Ecuador against the Chevron Corporation. Chevron has sought discovery in several American courts to obtain evidence that the Ecuadorian plaintiffs and their lawyers fraudulently obtained that judgment.
In the actions before us, Chevron sought documents from Aaron and Daria Page, two Maryland-based attorneys who assisted Steven Donziger, the lead attorney representing the Ecuadorian plaintiffs. When Chevron subpoenaed documents relating to the Ecuadorian judgment from the Pages, they argued that some of those documents were privileged or protected from disclosure. The district court disagreed and ordered the Pages to produce the requested documents. The Pages, along with two of the original plaintiffs from the Ecuadorian suit, now appeal.
For the reasons that follow, we dismiss appeal number 13–1382 and affirm the district court's judgment in appeal number 13–2028.
“The story of the conflict between Chevron and the residents of the Lago Agrio region of the Ecuadorian Amazon must be among the most extensively told in the history of the American federal judiciary.” Chevron Corp. v. Naranjo, 667 F.3d 232, 234 (2d Cir.2012). We provide only small parts of that saga, which relate to matters in the two appeals now before us.
Beginning in 1967, a consortium including Texaco Petroleum Company (“TexPet”) and Ecuador's state-owned oil company (now known as Petroecuador) managed oil-drilling operations in Ecuador's Oriente region. TexPet managed the consortium until 1990, when it transferred operational control to Petroecuador. TexPet sold its interests two years later.
Shortly after TexPet's withdrawal from Ecuador, a group of Ecuadorian plaintiffs sued TexPet's parent corporation, Texaco, Inc., in the Southern District of New York in 1993. See Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir.2002). The Aguinda plaintiffs alleged that TexPet's operations had “polluted the rain forests and rivers in Ecuador,” id., by “dump[ing] large quantities of toxic by-products of the drilling process into the local rivers, ... burning them, dumping them directly into landfills, and spreading them on the local dirt roads,” Jota v. Texaco, Inc., 157 F.3d 153, 155 (2d Cir.1998).
While Aguinda was pending, TexPet signed a 1994 settlement agreement with the Government of Ecuador and Petroecuador (“the Settlement Agreement”). Under that agreement, TexPet agreed to perform environmental remediation work in the Oriente region. See In re Chevron Corp., 650 F.3d 276, 284 (3d Cir.2011). In exchange, the Government of Ecuador and Petroecuador agreed to release TexPet and Texaco from claims relating to the consortium's “environmental impact.” Id. In 1998, Petroecuador and the Government of Ecuador executed a release stating that TexPet had fulfilled its duty to remediate under the Settlement Agreement.
Meanwhile, “the [New York] court dismissed the Aguinda case in 2002 on forum non conveniens grounds,” id., and a group of largely the same Ecuadorian plaintiffs refiled their suit against Chevron in Ecuador in 2003.1 This suit became known as the “Lago Agrio” litigation, while the 47 plaintiffs in the suit are commonly termed “the Ecuadorian Plaintiffs” or, sometimes, the “Lago Agrio Plaintiffs.” Steven Donziger, an American attorney who had earlier been involved in Aguinda, assumed primary control as lead counsel in the Lago Agrio suit for the Ecuadorian Plaintiffs.
In 2011, the Ecuadorian Plaintiffs obtained an $18.2 billion judgment against Chevron in the Ecuadorian court.2 The judgment recited that TexPet had caused damage to the local environment, culture, and health; it further held that Chevron was responsible for that damage as Texaco's successor-in-interest. Chevron has since exhausted its appeals in Ecuador, but the Constitutional Court of Ecuador has agreed to consider an extraordinary action seeking further review of the judgment.
Several years after the Lago Agrio litigation was filed, Chevron initiated arbitration proceedings against the Government of Ecuador before the Permanent Court of Arbitration at The Hague, Netherlands. See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1187 (11th Cir.2013). Chevron alleged that the Ecuadorian government had violated the Ecuador–United States Bilateral Investment Treaty in several ways relating to the Lago Agrio litigation. First, Ecuador had not indemnified Chevron as the Settlement Agreement required.Id. Second, Ecuador had failed to notify the Ecuadorian courts that Chevron was released from liability in the Lago Agrio litigation under the Settlement Agreement. Id. And third, the Ecuadorian government had improperly interfered in the Lago Agrio proceedings on behalf of the plaintiffs. Id. The arbitration proceeding is ongoing at The Hague.
The TexPet release aside, Chevron also contends that the Lago Agrio proceedings were a fraud that Donziger and others orchestrated. For instance, Chevron alleges that Donziger's litigation team ghostwrote expert reports from Richard Cabrera, an “impartial,” court-appointed damages expert. Later, Donziger and his associates are alleged to have commissioned a series of “cleansing memos”—purportedly independent reports buttressing or “cleansing” Cabrera's findings that were actually based on the same fraudulent data. Similarly, Chevron contends that the Ecuadorian Plaintiffs' attorneys forged an expert report from Dr. Charles Calmbacher, one of their own experts. Donziger and his team then purportedly bribed the Ecuadorian trial judge who authored the Lago Agrio judgment, offering $500,000 to the judge in exchange for a favorable outcome. According to Chevron, Donziger and his associates then wrote the final judgment award, placing large verbatim portions of their own internal documents into the final opinion.3
Chevron maintains that the Pages, who worked for Donziger during the Lago Agrio litigation, directly involved themselves in this fraud. For example, Chevron contends that the Pages developed certain extortion strategies meant to pressure Chevron into settling, such as instigating a bogus Securities and Exchange Commission investigation, accusing Chevron of committing genocide, and claiming that Chevron violated the Foreign Corrupt Practices Act. The Pages also allegedly contrived an entirely unsubstantiated damages estimate. And most importantly, the Pages are said to have written (or at least helped to write) “the Draft Alegato” and “the Fusion Memo,” two internal documents that were then partially incorporated verbatim into the Ecuadorian court's final judgment.
To help establish its fraud and arbitration related claims, Chevron sought discovery in the United States. By one court's count, Chevron brought “at least 25 [early] requests to obtain discovery from at least 30 different parties.” Chevron Corp., 633 F.3d at 159.
Chevron made these discovery requests under 28 U.S.C. § 1782, which empowers federal district courts to order persons “to give testimony or produce documents for use in a proceeding in a foreign or international tribunal.”4 Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241, 246, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (quotation marks omitted). Chevron planned to use the discovery in the ongoing international arbitration proceedings and the pending Ecuadorian appellate proceedings.
In a § 1782 proceeding in the Southern District of New York, Chevron sought to compel Donziger to produce certain documents and submit to a deposition. Donziger moved to quash, arguing in part that the subpoenaed documents were privileged—particularly under the attorney-client and work-product privileges. Donziger, however, failed to file a privilege log when he raised these objections.
Because Donziger failed to file a privilege log, the New York district court determined on October 20, 2010—in a decision termed “the Donziger Waiver”—that Donziger had waived any of the privileges that he claimed.See In re Application of Chevron Corp., 749 F.Supp.2d 135, 140 (S.D.N.Y.2010). Nonetheless, the district court afforded Donziger a chance to cure his waiver by filing a privilege log by a court-specified deadline. Id. at 140 n. 17. Donziger failed to do so. In a subsequent decision on Donziger's motion for reconsideration, the court then reaffirmed that “any claims of privilege with respect to the documents sought by the subpoena were waived.” In re Chevron Corp., 749 F.Supp.2d 170, 182 (S.D.N.Y.2010). The court ordered Donziger to produce “each and every document responsive to the subpoenas (irrespective of whether any privilege or other protection against disclosure has been or hereafter is or may be...
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