In re Application of Chevron Corp...This Document Applies To All Cases.
| Decision Date | 30 November 2010 |
| Docket Number | No. 10 MC 00002 (LAK).,10 MC 00002 (LAK). |
| Parties | In re Application of CHEVRON CORPORATION.This Document Applies to All Cases. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Randy M. Mastro, Scott A. Edelman, Kristen Hendricks, Andrew E. Neuman, William E. Thomson, Gibson Dunn & Crutcher LLP, for Chevron Corporation.Paul E. Dans, Jorge A. Mestre, Andrés Rivero, Rivero Mestre & Castro, for Rodrigo Pérez Pallares.Alan Vinegrad, Jason P. Criss, John Han, Covington & Burling LLP, for Ricardo Reis Veiga.Bruce S. Kaplan, Robert D. Kaplan, Friedman Kaplan Seiler & Adelman LLP, for Steven R. Donziger.Ilann M. Maazel, Jonathan S. Abady, Adam Pulver, O. Andrew F. Wilson, Emery Celli Brinckerhoff & Abady LLP, for Lago Agrio Plaintiffs.C. MacNeil Mitchell, Eric W. Bloom, Winston & Strawn, for Proposed Intervenor Republic of Ecuador.
Chevron is the target of litigation brought in Ecuador by the so-called Lago Agrio plaintiffs 1 in which the latter seek to recover $113 billion 2 for alleged environmental pollution by Texaco, Inc. (“Texaco”), from Texaco's current owner, Chevron Corporation (“Chevron”). 3 Rodrigo Pérez Pallares and Ricardo Reis Veiga (the “Individual Petitioners”) are facing criminal charges there as a result of having signed a settlement of pollution claims on behalf of Texaco some years ago. The criminal charges at least in part are a result of an alliance between the Lago Agrio plaintiffs and the Ecuadorian government, which has both financial and political interests in the success of the lawsuit. Chevron and the Individual Petitioners have been seeking to defend themselves by obtaining discovery in the United States under Section 1782 of the Judicial Code,4 which they believe will demonstrate that both the civil litigation and the criminal prosecution in Ecuador have been tainted by fraud and other misconduct by the Lago Agrio plaintiffs and improper collusion among them and the government of Ecuador (“GOE”).
This Court previously has recognized the urgency of the interests of Chevron and the Individual Petitioners. The Second Circuit has done so as well. 5 The reason is that the parties are engaged in a race. The Individual Petitioners face a preliminary hearing on January 5, 2011 which will determine whether they must stand trial in Ecuador on allegedly tainted criminal charges. Chevron faces the possibly imminent entry of an allegedly tainted multi-billion dollar judgment in the Lago Agrio litigation. Chevron and the Individual Petitioners seek evidence that they hope will demonstrate that the proceedings against them have been tainted and, almost as important, to obtain it in time to use it in Ecuador and, in Chevron's case, in international arbitration proceedings against the Republic of Ecuador. Both the Lago Agrio plaintiffs and the GOE have refused to stay or cooperate in efforts to stay the Ecuadorian proceedings pending resolution of this and other efforts by Chevron and the Individual Petitioners to obtain proof of their allegations through the collection of evidence in the United States.6
In this proceeding, Chevron and the Individual Petitioners obtained subpoenas requiring Steven Donziger, a New York attorney involved with the Lago Agrio plaintiffs, to submit to a deposition and to produce documents. On October 20, 2010, the Court denied motions to quash made by both Donziger and the Lago Agrio plaintiffs, held that all claimed privileges had been waived by the failure to submit a privilege log, directed that Donziger comply with the subpoenas “forthwith,” and appointed a special master to preside over the deposition.7
At this point, Donziger has produced some of the documents demanded by the subpoena. Instead of producing the balance, however, he submitted, on November 15, 2010, a purported privilege log—which is over 2,000 pages long and claims privilege as to 8,652 documents—and contends that he now should be permitted to litigate those privilege claims. The log includes claims of privilege as to approximately 2,500 or more documents sent or disclosed to a public relations person, the founder of the Amazon Defense Front or La Frente, Amazon Watch, the Wall Street Journal, Bloomberg News, Conde Nast, The New York Times, and the Los Angeles Times. Moreover, the 8,652–item privilege log lists not even one document that was written by or addressed to any of the Lago Agrio plaintiffs—the clients whose privilege supposedly is being asserted.
Chevron and the Individual Petitioners now move by order to show cause for an order requiring Donziger to do what the October 20, 2010 order already required—to produce all of the responsive documents forthwith. The Republic of Ecuador (“GOE”) also moves for leave to intervene, claiming that it shares a common interest privilege with the Lago Agrio plaintiffs.
The background of this litigation is amply set forth in the Court's prior opinions, familiarity with which is assumed.8 The Court therefore turns to the prior proceedings that frame the present issues.
Donziger and the Lago Agrio plaintiffs moved to quash the subpoenas on a variety of grounds including, among others, the claim that they called for the production of materials protected by the attorney-client privilege and the work product doctrine. They did not, however, submit a privilege log as required by the rules. Given the Individual Petitioners' and Chevron's urgent need for appropriate discovery, the Court ruled on the motions to quash by summary order, indicating that a full opinion would follow. Four aspects of the Summary Order are of particular relevance here:
First, it held that the privilege and work product objections with respect to deposition testimony by Donziger were premature and could be dealt with only in the context of specific questions posed to him at the deposition.9
Second, it held that any privilege and work product claims with respect to the subpoenaed documents had been waived by the failure to submit a privilege log as required by S.D.N.Y. Civ. R. 26.2 and Fed. R. Civ. P. 26(b)(5). 10 It stated, however, that the Court might, “in the exercise of its discretion[,] ... relieve [Donziger] of the waiver” if he “file[d] a complete privilege log on or before October 29, 2010.” 11
Third, it directed Donziger to comply with the subpoenas “forthwith.” 12 That is, it directed him both to testify and to produce all of the requested documents without delay.
Fourth, it appointed a special master to preside at the deposition and to resolve, subject to review by this Court, any privilege and work product claims made in response to specific questions posed to Donziger.13
On October 25, 2010, Donziger moved in this Court for reconsideration of the Summary Order “solely to the extent that the Order holds that ‘[i]nsofar as [Donziger] claims privilege with respect to the requested documents, the failure to file a privilege log as required by Local Civ. R. 26.2 and Fed.R.Civ.P. 26(b)(5) waived the objections.’ ” 14 As will appear, Donziger subsequently purported to withdraw that motion although he still seeks the relief it requested.
On November 5, 2010, this Court issued Chevron II, its full opinion amplifying the reasoning underlying the Summary Order. Contrary to suggestions now made by the Lago Agrio plaintiffs, Chevron II did not alter the Summary Order's direction that Donziger produce all documents sought by the subpoenas.
On October 26 and 27, 2010, the Lago Agrio plaintiffs and Donziger, respectively, filed notices of appeal from the Summary Order,15 and the Lago Agrio plaintiffs sought a stay in the Court of Appeals.16 On the latter day, a judge of the Court of Appeals stayed the Summary Order until noon on October 29,2010.17 That stay expired by its terms, but was reinstated later on October 29, 2010 pending consideration by a three-judge motions panel.18 The panel vacated the stay on November 15, 2010. 19
During the proceedings on the stay motion in the Court of Appeals, Chevron pointed out, inter alia, that the Court of Appeals lacked jurisdiction over the appeals from the Summary Order because the Summary Order was not final in view of the reconsideration motion pending in this Court.20 It contended as well that the Summary Order had left open the possibility that this Court would relieve Donziger and the Lago Agrio plaintiffs of their privilege waiver with respect to the subpoenaed documents. Pressed at oral argument by at least one member of the panel of the effect of the pending reconsideration motion, 21 Donziger purportedly withdrew it.22
Donziger ultimately produced a privilege log on or about November 15, 2010—nearly three months after moving to quash the subpoenas and 17 days after the October 29, 2010 date mentioned in the Summary Order. Chevron then moved by order to show cause for an order requiring “Donziger to produce forthwith all documents responsive to Chevron's subpoena,” an order which provided also that nothing therein was to “be construed to imply that Donziger is not already in violation of a previous order [the Summary Order] that required the production forthwith of all documents responsive to the subpoena.” 23
Two days later, and just one business day before the argument of the Chevron–Individual Petitioner motions to compel Donziger to comply with the Summary Order, the GOE moved for leave to intervene, claiming an interest in protecting certain documents shared between it (or its counsel) and Donziger.24 In the interest of brevity, the Court reserves further discussion of the circumstances of that application intervention until later in this opinion.
Chevron and the Individual Petitioners now seek an order requiring Donziger to...
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