Republic Ecuador v. Hinchee

• Decision Date: 18 December 2013
• Docket Number: No. 12–16216.,12–16216.
• Citation: 741 F.3d 1185
• Parties: REPUBLIC OF ECUADOR, Dr. Diego Garcia Carrion, Petitioners–Appellees, v. Dr. Robert E. HINCHEE, Respondent–Appellant, Chevron Corporation, Intervenor–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

741 F.3d 1185

REPUBLIC OF ECUADOR, Dr. Diego Garcia Carrion, Petitioners–Appellees,

v. Dr. Robert E. HINCHEE, Respondent–Appellant,Chevron Corporation, Intervenor–Appellant.

No. 12–16216.

United States Court of Appeals, Eleventh Circuit.

Dec. 18, 2013.

Gene C. Schaerr, Eric W. Bloom, Gregory Longstreet Ewing, Winston & Strawn, LLP, Washington, DC, for Petitioners–Appellees.

Thomas Henderson Dupree, Jr., Rebecca Gray, Peter E. Seley, Scott Grant Stewart, Gibson, Dunn & Crutcher LLP, Washington, DC, Theodore Joseph Boutrous, Jr., Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Allison Kostecka, Gibson Dunn & Crutcher, LLP, Denver, CO, Joshua S. Lipshutz, Gibson Dunn & Crutcher, LLP, San Francisco, CA, Harry Osborne Thomas, Radey Thomas Yon & Clark, PA, Tallahassee, FL, for Intervenor–Appellant and Respondent–Appellant.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:11–mc–00073–RH–CAS.

Before HULL and HILL, Circuit Judges, and PANNELL,^* District Judge.

HULL, Circuit Judge:

Respondent–Appellant Dr. Robert Hinchee (“Dr. Hinchee”), who resides in Florida, and Intervenor–Appellant Chevron Corporation (“Chevron”) appeal the district court's discovery order compelling production of Dr. Hinchee's documents to Petitioner–Appellee, the Republic of Ecuador (“the Republic”). Dr. Hinchee served as a testifying expert for Chevron in a related proceeding. Dr. Hinchee's documents at issue are (1) Dr. Hinchee's personal notes for his own use and (2) email communications between Dr. Hinchee and a group of non-attorneys consisting primarily of other Chevron experts. Dr. Hinchee and Chevron contend that these documents are shielded from discovery by the work-product doctrine, relying primarily on Rule 26(b)(3) and the 2010 Amendments to Rule 26(a)(2) of the Federal Rules of Civil Procedure.

This case requires the Court to determine (1) the scope of discovery that can be obtained from testifying experts under Rule 26 and (2) the impact of the 2010 Amendments to Rule 26 on that discovery. After careful review of the briefs and with the benefit of oral argument, we affirm the district court's order compelling the production of the documents in this case.

I. BACKGROUND

A. The Underlying Litigation in Ecuador

The discovery dispute before this Court is only a minor part of a large international controversy. It began in 1993 when a group of Ecuadorian plaintiffs filed a class action complaint against a subsidiary of Texaco, Inc. in the Southern District of New York. The Ecuadorian plaintiffs alleged that Texaco's oil exploration in the Amazonian rain forest polluted private and public lands in Ecuador and that Texaco was responsible for the plaintiffs' oil-related health problems and the environmental contamination of the plaintiffs' property. See Jota v. Texaco, Inc., 157 F.3d 153, 155–56 (2d Cir.1998). The Southern District of New York dismissed the case on the basis of forum non conveniens, Aguinda v. Texaco, Inc., 142 F.Supp.2d 534, 554 (S.D.N.Y.2001), and the Second Circuit affirmed, 303 F.3d 470, 480 (2d Cir.2002).

After this ruling, some of the plaintiffs filed similar claims in Lago Agrio, Ecuador in 2003. By then, Chevron had merged with Texaco, thereby assuming liability for Texaco's operations. See Republic of Ecuador v. Chevron, 638 F.3d 384, 388 n. 1, 389 n. 3 (2d Cir.2011). The Lago Agrio court in Ecuador issued its judgment in 2011, awarding the Ecuadorian plaintiffs approximately $18.2 billion in damages against Chevron. The first-level appellate court affirmed this judgment in full, but Ecuador's highest court recently reduced the judgment to $9.1 billion.

B. Treaty Arbitration in The Hague

While the Lago Agrio litigation was pending in Ecuador, Chevron sought arbitration against the Republic of Ecuador (“the Republic”) in front of the Permanent Court of Arbitration in The Hague, Netherlands. Chevron claimed that the Republic had violated its obligations under the Ecuador–United States Bilateral Investment Treaty (“Treaty”). Specifically, Chevron contended that the Republic breached the Treaty by: (1) failing to notify the Lago Agrio court that Chevron was fully released from any liability relating to the environmental pollution through a settlement agreement between Chevron and the Republic; (2) refusing to “indemnify, protect and defend” the rights of Chevron in connection with the Lago Agrio litigation; (3) “openly campaigning for a decision against Chevron”; and (4) engaging “in a pattern of improper and fundamentally unfair conduct.”

This Treaty arbitration remains ongoing. Chevron seeks, inter alia, indemnification or damages from the Republic to cover the cost of the monetary award entered against Chevron in the Lago Agrio litigation. To support its position in the Treaty arbitration, Chevron has sought materials and documents in the possession of experts who testified for the plaintiffs in the Lago Agrio litigation, including experts residing in the United States. In turn, the Republic has requested discovery from Chevron's expert witnesses in the Lago Agrio litigation, including Dr. Hinchee in Florida.

C. Subpoena on Dr. Hinchee

The Republic sought discovery from Dr. Hinchee in the District Court for the Northern District of Florida where Dr. Hinchee resides. The Republic requested this discovery to aid “in defending the validity of the Lago Agrio judgment” in the Treaty arbitration. The Republic explained that “Dr. Hinchee is an environmental engineer and an expert in the assessment and remediation of petroleum contaminated sites.” Because Chevron relied on Dr. Hinchee's expert reports in both the Lago Agrio litigation and in the Treaty arbitration, the Republic contended that Dr. Hinchee and his documents were relevant to the Treaty arbitration. The Republic requested that the district court issue a subpoena to Dr. Hinchee for a deposition and production of documents pursuant to 28 U.S.C. § 1782, which allows the district court to issue orders to give “[a]ssistance to foreign and international tribunals and to litigants before such tribunals.”

Chevron intervened in the district court action and opposed the subpoena. The district court granted the Republic's request for a subpoena, and Dr. Hinchee and Chevron produced approximately 94,000 pages of documents. However, Dr. Hinchee and Chevron asserted work-product protection over 1,200 documents.

D. The Republic's Motion to Compel

The Republic moved to compel production of the remaining 1,200 documents, challenging Chevron's and Dr. Hinchee's assertions of work-product protection and requesting that the district court perform an in camera review. Chevron and Dr. Hinchee opposed the motion.

The district court initially granted the Republic's motion in part, ordering Chevron to submit 40 of the withheld documents for in camera review.

E. District Court's Order After In Camera review

After concluding its in camera review, the district court ruled that 39 of the 40 documents were not privileged. The one document that the district court found protected by the work-product doctrine was a draft of an expert report. The remaining 39 documents consisted of (1) Dr. Hinchee's notes and (2) communications between Dr. Hinchee and “one or more individuals who were neither attorneys nor members of an attorney's staff.” Some of the communications in this second group were between Dr. Hinchee and other expert witnesses testifying for Chevron. Other communications were between Dr. Hinchee and “Chevron nonattorney employees, including Sara McMillan [sic].” ¹

The district court ordered Chevron and Dr. Hinchee to produce the 39 non-privileged documents, explaining that the “work-product doctrine [does] not protect a testifying expert's own notes or communications with another testifying expert.”

The district court also ordered Chevron and Dr. Hinchee to “produce to the Republic all other documents [listed on the privilege log] ... that were not draft reports or communications between Chevron's attorneys or their staff members and Dr. Hinchee or his staff members.” And to the extent Chevron and Dr. Hinchee still maintained any claim of attorney-client privilege or work-product protection over any document, the district court ordered Chevron and Dr. Hinchee to submit the document to the court for in camera review.

Chevron and Dr. Hinchee timely appealed the district court's order.

II. STANDARD OF REVIEW

“[D]istrict courts are entitled to broad discretion in managing pretrial discovery matters,” Perez v. Miami–Dade Cnty., 297 F.3d 1255, 1263 (11th Cir.2002); see also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.2011), including when ruling on the applicability of the work-product doctrine, see, e.g., United Kingdom v. United States, 238 F.3d 1312, 1321 (11th Cir.2001) (holding that “the district court did not abuse its discretion by declining to order the production of the Government's confidential work product”); see also Bradley v. King, 556 F.3d 1225, 1229 (11th Cir.2009) (“A district court has wide discretion in discovery matters and our review is accordingly deferential.” (internal quotation marks omitted)). However, the “[i]nterpretation of the Federal Rules of Civil Procedure presents a question of law subject to de novo review.” Mega Life & Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1403 (11th Cir.2009).

The issue in this appeal is whether the district court erred in its interpretation of Rule 26, including the 2010 Amendments to Rule 26. This presents a question of law subject to this Court's de novo review. See Klay v. All Defendants, 425 F.3d 977, 982 (11th Cir.2005) (noting that a district court is entitled to broad discretion in pretrial discovery matters, but holding that interpretations of a term in Rule 45 is a legal question subject to de novo review); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir.2000) (“[T]o the extent that the issue involves the...