|
|
IN RE CHEVRON CORP.
749 F.Supp.2d 141 (2010)
In re Application of CHEVRON CORPORATION, et al.,
This Document Applies to All Cases.
No. 10 MC 00002 (LAK).
United States District Court, S.D. New York.
November 10, 2010.
OPINION(CORRECTED)LEWIS A. KAPLAN, District Judge.
Table of Contents
Facts...............................................................................144
I. The Present Posture of the Ecuadorian Proceedings and the Urgency of
this Matter..............................................................144
II. Crude, Donziger's Central Role in the Events at Issue, and these
Subpoenas................................................................145
III. The U.S. Litigation Against Texaco and Chevron.............................148
A. Texaco's Operations in Ecuador..........................................148
B. The Aguinda Action .....................................................148
IV. The Settlement and Release.................................................149
V. The Ecuadorian Litigation and Criminal Prosecutions........................149
A. The Lago Agrio Litigation, the Global Assessment and Other
Evidence of Misconduct................................................149
B. The Initial Criminal Investigation .....................................153
C. Donziger Solicits the Making of Crude ..................................154
D. President Correa Takes Office...........................................154
VI. The UNCITRAL Arbitration ..................................................156
VII. The Nature of Donziger's Activities........................................157
A. The March 30, 2006 Intimidation of the Judge............................158
B. The Plan to Pressure the Court With an "Army" ..........................158
C. Killing the Judge?......................................................159
Discussion..........................................................................159
I. Judicial Code Section 1782.................................................159
A. Statutory Requirements..................................................160
B. Discretionary Factors...................................................160
II. Deposition of Adverse Counsel..............................................162
A. The Need to Depose Donziger ............................................162
B. Donziger's Role.........................................................163
C. Extent of Discovery Already Conducted...................................164
D. Risk of Encountering Privilege and Work-Product Issues .................164
1. Basic Principles ....................................................164
2. The Normal Means of Claiming Privilege...............................166
3. Application to Donziger..............................................167
III. The Proposed Modification of the Subpoenas.................................169
Conclusion..........................................................................170
Chevron is the target of litigation brought in Ecuador by the so-called Lago Agrio plaintiffs1 in which the latter seek to recover $113 billion2 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 such 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 are 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"). At the heart of this matter is Steven R. Donziger, a member of the New York Bar but, much more importantly, the field general of the Lago Agrio plaintiffs' efforts in Ecuador—efforts that include lobbying, media and public relations, fund raising, and other activities. Chevron and the Individual Petitioners here subpoenaed Donziger to produce documents and to give testimony, as they maintain that Donziger is the prime actor, or among the prime actors, in the alleged fraud and misconduct. Donziger moved to quash the subpoenas. Most significantly, he argued in substance that his status as an attorney involved adversely to Chevron and the Individual Petitioners in the Ecuadorian litigation protects him from (1) being compelled to assert his claims of attorney-client privilege and work product protection on a document-by-document, communication-by-communication basis and thus depriving Chevron and the Individual Petitioners of a meaningful opportunity to challenge those claims and (2) giving evidence even as to obviously non-privileged matters. It is common ground that one party to a litigation should not easily be permitted to take discovery of the lawyers on the other side. The possibilities for mischief and abuse are too great. In the quite unusual circumstances of this case, however, the need for the discovery, the plainly unprivileged nature of many of Donziger's activities, the evidence of possible fraud and misconduct by Donziger, and other considerations are sufficiently great to require that Donziger respond on the merits to the subpoenas. He must give discovery as to non-privileged matters. He must not be exempted from making specific claims of privilege or from defending those claims against any challenges. Accordingly, the Court denied the motions to quash and required compliance, saving to Donziger the ability to make specific claims of privilege for later adjudication by the Court. It did so in a summary order5 with the promise of a fuller opinion to follow. This is that fuller opinion.
1. The Lago Agrio plaintiffs are forty-eight individuals.
2. In September 2010, the Lago Agrio plaintiffs raised their damages assessment, in a submission to the Lago Agrio court, to $113 billion at the high end of the range, which is significantly greater than the $27 billion figure in the report published by the supposedly independent court-appointed expert.
3. Chevron acquired Texaco in 2001, after Texaco discontinued operations in Ecuador and settled environmental claims with its government.
4. 28 U.S.C. § 1782.
5. In re Application of Chevron Corp., No. 10 MC 00002(LAK), 749 F.Supp.2d 135, 2010 WL 4118093 (S.D.N.Y. Oct. 20, 2010).
6. Hendricks Decl. II Ex. A, CRS-129-00-02.
7. 28 U.S.C. § 1782.
8. In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D.Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D.Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D.Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No. 10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D.Tenn. Aug. 17, 2010), appeal docketed, No. 10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Camp, No. 1:10-mc-0027-GCM-DLH, 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp).
9. In re Application of Chevron Corp., 709 F.Supp.2d 283, 296 (S.D.N.Y.2010) (hereinafter Chevron I).
10. Id.
11. Id. at 298.
12. Id. at 289, 296.
13. See id.
14. Hendricks Decl. II Ex. A, CRS-053-02-03.
15. Id., CRS-052-00-06.
16. Id., CRS-053-02-01.
17. Id., CRS-158-02-09.
18. Id., CRS-195-05-01.
19. Id., CRS-198-00-06.
20. In re Chevron Corp., No. 10-MC-21 (J/LFG) [DI 11] (D.N.M. Sept. 13, 2010) (finding "that . . . discussions trigger the crime-fraud exception, because they relate to corruption of the judicial process, the preparation of fraudulent reports, the fabrication of evidence, and the preparation of the purported expert reports by the attorneys and their consultants."); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) [DI 9], 2010 WL 3584520 (S.D.Cal. Sept. 10, 2010) (crime-fraud exception applies because "[t]here is ample evidence in the record that the Ecuadorian Plaintiffs secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed expert, and colluded with Mr. Cabrera to make it look like the opinions were his own."); Chevron Corp. v. Camp, No. 1:10-mc-0027 (GCM-DLH) [DI 12], 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010) ("While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.").
21. The background of this matter is further described in other decisions of this Court and the Second Circuit. See generally Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998); Republic of Ecuador v. ChevronTexaco Corp., 376 F.Supp.2d 334 (S.D.N.Y.2005); Aguinda v. Texaco, 945 F.Supp. 625 (S.D.N.Y. 1996); Aguinda v. Texaco, Inc., 142 F.Supp.2d 534 (S.D.N.Y.2001).
22. Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir.2002).
23. See Republic of Ecuador, 376 F.Supp.2d at 341.
26. Republic of Ecuador, 376 F.Supp.2d at 341-42.
27. Id. at 342.
28. Hendricks Decl. I Ex. BB, ¶ 28.
29. Republic of Ecuador, 376 F.Supp.2d at 342.
30. Dans Decl. Ex. 21, at 2.
31. Request for Judicial Notice [DI 15] Ex. B-Part 1, at 4.
32. As Crude and the outtakes make clear, Fajardo and Donziger are close associates.
33. Hendricks Decl. II Ex. A, CRS-158-02-06.
34. Id., CRS-361-11-01.
35. Id., CRS-187-01-02-02.
36. Id., CRS-189-00-02.
37. Id., CRS-187-01-02.
38. Id., CRS-191-00-03 (emphasis added).
Chevron and the Lago Agrio plaintiffs disagree about a portion of the translation of this clip. The disagreement, however, is immaterial for two reasons. First, the Lago Agrio plaintiffs do not dispute that Fajardo said "the work isn't going to be the expert's." They instead quibble over a subsequent statement. Second, all agree that one of the plaintiffs' American experts, through a translator, asked Fajardo in substance whether "the final report [is] going to be prepared only by the expert?" (In the alternate translation, the question is "will the final report be prepared by the expert alone?). The Lago Agrio plaintiffs contend that Fajardo responded, "What the expert will do is give his criteria . . . right . . . his opinion, and sign the report, and review it as well. But we, all of us, have to contribute to the report. Together, right." Chevron's translation attributes the following statement to Fajardo: "What the expert is going to do is [unintelligible] and sign the report and review it. But all of us [unintelligible] have to contribute to that report." The substance of both translations therefore is the same. It is not disputed that the Lago Agrio plaintiffs planned to make a significant contribution to the Cabrera's report, quarreling only as to whether Cabrera would have some limited involvement. And if there were any remaining doubt about the Lago Agrio plaintiffs' intent, the lunch meeting the following day, which was conducted in English, offers clarity.
39. Id.
40. Id.
41. Id., CRS-189-00-02.
42. Id.
43. Id.
It is interesting, and possibly significant, that Donziger and Cabrera, soon to be appointed the neutral and impartial expert, already were on a first-name basis.
44. Hendricks Decl. I Ex. A, CRS-193-00-01.
45. Hendricks Decl. II Ex. A, CRS-196-00-01.
46. Id., CRS-195-05-01.
47. Id.
48. Id.
49. Id., CRS-196-00-01.
50. Id.
51. Chevron challenged Cabrera's appointment in Ecuador. The Lago Agrio plaintiffs responded that he was impartial. Neuman Decl. Ex. C, at 2.
52. Prior to the submission of the first Cabrera report in March 2008, plaintiffs' consulting experts sent English language emails regarding proposed language for a summary report and other annexes to a translation service. Neuman Decl. Ex. U, at 141. Another email exchange reflected correspondence about an "attached proposed global damages assessment" and an "[attached] draft Summary Report." Id. at 136, 546. Finally, a linguistic analysis of the Cabrera report found that certain sections were written by a native English speaker and translated to Spanish, while a native Spanish speaker wrote other sections of the report. Hendricks Decl. II Ex. S, at 6. There is no evidence that Cabrera, an Ecuadorian, is a native English speaker.
53. Hendricks Decl. I Ex. EE, ¶ 44.
54. In re Application of Chevron Corp., No. 1:10-MI-0076-TWT-GGB, Order, at 2 (N.D. Ga. dated Mar. 2, 2010).
55. Id. at 3.
56. Hendricks Decl. I Ex. DD, at 116:9-10.
57. Id. at 117:16-20.
58. Id. at 113:23-25.
59. Id. at 115:15-19.
60. Id. at 118:15-119:1.
61. Id. at 92:2-11.
62. Id. at 132:11-133:19, 107:15-108:2.
63. Hendricks Decl. I Ex. BB.
In other disturbing incidents, Donziger appears to have used a remediation cost estimate that he knew to have been overstated. One of plaintiffs' consulting experts, David Russell, in 2003 estimated that the cost of the environmental clean-up would be $6 billion. In late January 2006, Amazon Watch, a non-governmental organization closely allied with Donziger and the Lago Agrio plaintiffs, cited that estimate in a letter to the U.S. Securities and Exchange Commission that accused Chevron of securities law violations in relation to its disclosures about the Lago Agrio litigation. On February 14, 2006, Russell directed Donziger to stop using that estimate because it was "too high by a substantial margin, perhaps by a factor of ten, or more" and said that he would so testify if subpoenaed. Hendricks Decl. II Ex. TT. Donziger, however, continued to use the $6 billion cost estimate. See id. Ex. A, CRS-023-07-04, CRS-116-01-01, CRS-38-02-02.
Another incident occurred later in 2006. A different expert estimated the clean-up cost at $3 billion. Id. Ex. VV. Donziger then wrote to him as follows: "GUARD THAT NUMBER WITH YOUR LIFE PLEASE. DO NOT TELL ANYBODY. THIS HAS A WAY OF GETTING BACK TO TEXACO." Id. (emphasis in original).
64. Dans Decl. Ex. 3, at 1-2.
65. Id. Ex. 11, at 10.
66. `Socialismo' en el discurso de Correa, EL UNIVERSO, July 23, 2007, http://www.eluniverso.com/2007/07/23/0001/8/52BB6011269D4A87B7E96771F48D4A62.html (last visited Oct. 8, 2010);
see also Rafael Correa Biography, GUERRILLERO, June 29, 2009, http://www.guerrillero.cu/english/index.php?option=com_content&view=article&id=577:rafael-correa-biography&catid=41:varieties&Itemid=61 (last visited Oct. 8, 2010).
67. Rafael Correa Biography, supra note 66.
68. Hendricks Decl. II Ex. A, CRS-163-02-02.
69. Id.
70. Dans Decl. Ex. 2, CRS-170-00-03.
71. Id. Ex. 17.
72. Id. Ex. 2, CRS-198-00-04.
73. Hendricks Decl. II Ex. A, CRS-204-01-02.
74. Dans Decl. Ex. 12.
75. Id. Ex. 2, CRS-248-03-01.
76. Id.
77. Crude, 1:03:03.
78. Portions of President Correa's visit are depicted in Crude and the outtakes.
79. Id. Ex. 14.
80. Hendricks Decl. II Ex. A, CRS-268-00-01.
81. Dans Decl. Ex. 13.
82. Ecuador Forum Dissolves Congress, BBC NEWS (Nov. 30, 2007, 04:55 GMT), http://news.bbc.co.uk/2/hi/americas/7119373.stm.
83. Id. Ex. 11, at 10.
84. See id. Ex. 15.
85. Id.
86. Id. Ex. 16.
87. Id. Ex. 23.
88. Id. Ex. 19.
89. Id. Ex. 20.
90. Investment Treaty With the Republic of Ecuador, Aug. 27, 1993, S. Treaty Doc. No. 103-15.
91. Id. Art. VI(3)(A), VI(4).
92. Hendricks Decl. I, Ex. EE, passim.
93. Id. at 17-18.
94. Hendricks Decl. II Ex. A, CRS-027-16-05.
95. Id.
96. Id., CRS-027-16-03.
97. Id., CRS-151-03-02.
98. Id., CRS-060-00-04.
99. Id.
100. Id.
101. Id., CRS-032-00-01.
102. See id., CRS-198-00-06.
103. Id., CRS-052-00-06. This is not the first time that Donziger deployed such a strategy. When an Ecuadorian judge would not allow Donziger to appear in court because he did not have his passport. Donziger instructed an Ecuadorian attorney to lie and say that the judge called Donziger a "gringo." See id., CRS-046-02-01.
104. Id., CRS-053-02-01.
105. Id., CRS-346-00-02.
106. Id., CRS-350-04-01.
107. Id.
108. Id.
109. Id., CRS-350-04-02.
110. Id.
111. Id.
112. Id.
113. Id.
114. Id.
115. Id., CRS-376-04-01.
116. Id.
117. Id., CRS-129-00-02.
118. 28 U.S.C. § 1782.
119. Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir.2004) (quoting In re Esses, 101 F.3d 873, 875 (2d Cir.1996) (per curiam)).
120. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004); In re Application of Microsoft Corp., 428 F.Supp.2d 188, 192 (S.D.N.Y.2006).
121. Schmitz, 376 F.3d at 83-84.
122. Intel, 542 U.S. at 264-65, 124 S.Ct. 2466; Microsoft Corp., 428 F.Supp.2d at 192-93.
123. Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)).
124. Chevron I, 709 F.Supp.2d at 291.
125. Id. at 291-93.
126. Hendricks Decl. II Ex. A, CRS-350-04-02.
127. See, e.g., Chevron I, 709 F.Supp.2d 283; In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D.Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D.Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D.Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No. 10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D.Tenn. Aug. 17, 2010), appeal docketed, No. 10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Camp, No. 1:10-mc-0027-GCM-DLH, 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp).
128. See, e.g., Chevron I, 709 F.Supp.2d at 292.
129. In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir.2003) (hereinafter In re Friedman).
130. Id. at 69-72.
131. Id. at 71.
132. Id. at 72.
133. Hendricks Decl. II Ex. A, CRS-151-03-02.
134. See In re Friedman, 350 F.3d at 71 ("the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature").
135. Id. at 70-72.
136. Id. at 72.
137. United States v. Const. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996).
138. In re County of Erie, 473 F.3d 413, 420-21 (2d Cir.2007).
139. Id. at 421.
140. Const. Prod. Research, Inc., 73 F.3d at 473.
141. SUP.CT. STD. 503.
142. See, e.g., NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 130 (N.D.N.Y.2007) (when an attorney is "wearing multiple hats and ... advising... on anything and everything other than legal services, whether business, media, public relations, or lobbying, there is no attorney-client privilege"); Haugh v. Schroder Inv. Mgmt. North America Inc., No. 02 Civ. 7955, 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) ("A media campaign is not a litigation strategy. Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice."); In re Grand Jury Subpoenas dated March 9, 2001, 179 F.Supp.2d 270, 274, 290 (S.D.N.Y.2001) (communications with lawyers acting as lobbyists not privileged); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 9 (D.Mass.2000) (documents prepared to respond to media inquires not privileged); Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 487 (D.Kan. 1997) ("The fact that the client chose to channel the work through an attorney rather than perform the work with non-legal personnel does not provide the basis for a claim of privilege.").
143. In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 383 (2d Cir.2003).
144. United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).
145. In re Grand Jury Subpoenas dated March 9, 2001, 179 F.Supp.2d at 290 (no work product protection for lawyers involved in seeking a pardon, a political and lobbying enterprise).
146. Id. at 285 (quoting EDNA STEIN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE & THE WORK PRODUCT DOCTRINE 239 (2001)) (internal quotation marks omitted).
147. FED.R.CIV.P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.
148. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 146 (2d Cir.1987) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965)).
149. See 24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5507, at 567 (2007) ("One cannot assert the privilege by a blanket refusal to testify; there must be specific objection to particular questions calling for privileged information.").
150. See FED.R.CIV.P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.
151. For example, a party resisting a claim of privilege or work product could establish that the material in question is not protected by virtue of the crime-fraud exception. Many claims of work product may be overcome by a showing of good cause for disclosure. FED. R.CIV.P. 26(b)(3)(A).
152. The Lago Agrio plaintiffs attempt to avoid disclosure of communications between Donziger and others in their corner with the GOE on the theory that they have a common interest with the GOE and that this "protect[s] the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." But the existence of a common interest privilege has not been established. Moreover, acceptance the common interest claim at this stage would have prevented Chevron and the Individual Petitioners from challenging the claim.
153. In re Chevron Corp., No. 10-MC-21JH/LFG [DI 11] (D.N.M. Sept. 13, 2010); In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D.Cal. Sept. 10, 2010); Chevron Corp. v. Camp, No. 1:10-mc-0027-GCM-DLH [DI 12], 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010).
154. See, e.g., Lugosch v. Congel, 219 F.R.D. 220, 250 (N.D.N.Y.2003) ("[I]nformation considered by the [testifying] expert should be disclosed notwithstanding the presence of work product consideration."); Mfg. Admin. & Mgmt. Systs., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115-16 (E.D.N.Y.2002) (attorney work product not protected when shared with testifying experts); MCI Commc'ns Corp. v. Dataline, Inc., No. 01 Civ. 3849(LAP)(DFE), 2001 WL 1335291, at *1 (S.D.N.Y. Oct. 30, 2001) (collecting cases); B.C.F. Oil Ref. v. Consol. Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y.1997) (holding that attorney work product reviewed by a testifying expert is not protected by work product).
155. In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D.Cal. Sept. 10, 2010).
156. See FED.R.CIV.P. 26(b)(3)(A).
157. Donziger has advanced no persuasive reason why he should not be compelled to claim privilege in the same manner as any other litigant—providing a privilege log enumerating the documents as to which privilege is claimed, claiming privilege in response to deposition questions, and in each case providing such information as may be necessary to make out his claim. Although Donziger claims that a privilege review of his files would be "time consuming" and "complicated," the Court is not persuaded that he should not be required to conform to the usual rules because, among other things, (1) he has provided no estimate of the number of documents as to which he has colorable claims of privilege, (2) Chevron has dropped the one subpoena request that blatantly called for privileged information, Chevron Mem. 48, and (3) his evidence is so central to the applicants' interests. Moreover, it appears that there can be no viable claim of privilege with respect to large areas of the discovery sought because it involves communications between Donziger and unrelated third parties.
158. Donziger Mem. 20.
159. It must be borne in mind that there is evidence that the purpose of the March 3, 2007 meeting was to outline a work plan pursuant to which consultants hired by the Lago Agrio plaintiffs would at least contribute to and at worst write Cabrera's report.
|
|