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. .
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. ; Order (Oct. 20, 2010) (Chevron Application), No. 10 Misc. 371, Docket No. . 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'
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..
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].
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),
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
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, 1997 WL 1052017, at *3 (D.Conn. Oct. 10, 1997). This well-reasoned standard is designed "to avoid speculative forays into legal territories unfamiliar to federal judges." Ecuadorian Plaintiffs, 619 F.3d at 378; see also Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3923092, at *5 (D.Colo. Oct. 1, 2010) ("This Court is in no position to presume applying the law of a foreign jurisdiction ... and principles of comity between sovereign entities require such philosophy."); cf. In re Exxon Valdez, 142 F.R.D. 380, 384-85 (D.D.C.1992) (enforcing subpoena but deferring to tribunal in parallel state and federal actions to determine propriety of assertions of privilege). Although perhaps cautious, this approach recognizes the limited scope of § 1782(a) proceedings, and furthers the statute's twin aims of providing fair and efficient assistance to participants in international litigation and encouraging other countries to provide similar assistance. See In re Application of Euromepa S.A., 51 F.3d 1095, 1097 (2d Cir.1995).
B. Assertions of Privileges under United States Law
Under the federal common law, the proponent bears the burden of demonstrating the applicability of any asserted privilege. Fed. Trade Comm'n v. TRW, Inc., 628 F.2d 207, 213 (D.C.Cir.1980). The nature of that burden is clear: the proponent must establish the claimed privilege with "reasonably certainty." In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm'n, 439 F.3d 740, 750-51 (D.C.Cir.2006); accord Amobi v. D.C. Dep't of Corrections, 262 F.R.D. 45, 51 (D.D.C.2009). That showing must extend to "each of the essential elements necessary to support a claim of privilege." Alexander v. Fed. Bureau of Investigation, 192 F.R.D. 42, 45 (D.D.C. 2000). Nor may the proponent assert blanket or categorical claims of privilege; rather, the law "requires a showing that the privilege applies to each communication for which it is asserted." United States v. Legal Servs. for N.Y.C., 249 F.3d 1077, 1082 (D.C.Cir.2001).
In discharging its burden, the proponent must adduce competent evidence in support of its claims. Alexander, 192 F.R.D. at 45; see also In re Application of Chevron Corp., 2010 WL 2038826, at *4 (S.D.Tex. May 20, 2010), aff'd, 619 F.3d 373, 378 (5th Cir.2010). Consistent with
1. The Attorney-Client Privilege
In order to demonstrate the applicability of the attorney-client privilege, the proponent must establish each of the following essential elements:
Elkins v. District of Columbia, 250 F.R.D. 20, 24 (D.D.C.2008) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir.1984)). Likewise, that the communications contain confidential information and have been maintained in confidence are prerequisites to the recognition of the privilege. Fed. Trade Comm'n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C.Cir.2002).
Because it inhibits the truth-finding process, the attorney-client privilege has generally been narrowly construed. Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981). It has been said that, "[a]lthough the attorney-client privilege is of ancient lineage and continuing importance, the confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived." In re Sealed Case, 877 F.2d 976, 980 (D.C.Cir.1989). Consistent with this logic, it is axiomatic that the voluntary disclosure of an otherwise privileged communication generally vitiates the privilege. Elkins, 250 F.R.D. at 24. Courts "will grant no greater protection to those who assert the privilege than their own precautions warrant," Sealed Case, 877 F.2d at 980, and the proponent cannot be heard to "invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit," Permian Corp., 665 F.2d at 1221.
2. The Work Product Privilege
The attorney work product privilege, as codified in the Federal Rules of Civil Procedure, protects documents and materials "that are prepared in anticipation of litigation or for trial by or for [a] party or its representative"—a class that includes a party's attorney, consultant, or agent. Fed.R.Civ.P. 26(b)(3)(A). In assessing whether the proponent has carried its burden, the relevant inquiry is as follows: "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Equal Emp't Opportunity Comm'n v. Lutheran Social Servs., 186 F.3d 959, 968 (D.C.Cir.1999) (internal quotation marks omitted). The inquiry contains two related, but nevertheless distinct concepts
The work product privilege is qualified, not absolute. Elkins, 250 F.R.D. at 26. As with the attorney-client privilege, voluntary disclosure may waive its protections. However, due to their distinct functions, courts employ a slightly different inquiry when asking whether the work product privilege has been forfeited by virtue of voluntary disclosure. United States v. Deloitte LLP, 610 F.3d 129, 140 (D.C.Cir.2010). In this context, voluntary disclosure to a third party constitutes a waiver where the disclosure is made under circumstances inconsistent with the maintenance of secrecy from one's adversary. Id. Pursuant to this so-called "maintenance of secrecy" standard, courts inquire whether the proponent "had a reasonable basis for believing that the recipient would keep the disclosed material confidential." Id. at 141.
Even where the proponent has established the applicability of the work product privilege, and that privilege has not otherwise been waived, that is not the end of the inquiry. Of the two types of work product—"fact" work product and "opinion" work product—the requesting party may discover the former upon "show[ing] that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Fed.R.Civ.P. 26(b)(3)(A)(ii). Opinion work product, however, is "virtually undiscoverable." Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C.Cir.1997). To support the discovery of opinion work product, "a party must show `extraordinary justification.'" In re HealthSouth Corp. Secs. Litig., 250 F.R.D. 8, 10 (D.D.C.2008) (quoting In re Sealed Case, 676 F.2d 793, 810 (D.C.Cir.1982)). Absent such a showing, the court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed.R.Civ.P. 26(b)(3)(B).
In the course of briefing the present motion, the parties addressed several general categories of information identified on Respondent's Privilege Log. With limited departures, the Court shall preserve those categories in addressing the merits of the present motion. However, before proceeding, two qualifications are in order. First, where possible, the Court has attempted to specifically identify documents by the number listed on Respondent's Privilege Log. For various reasons (e.g., omissions in the Privilege Log, supplemental productions, etc.), documents not specifically identified may very well fall within the categories described; in that event, such documents should be treated consistently with the Court's analysis here. Second, the Court is aware that the categories employed are, to a large extent, overlapping, and particular documents may fall within the metes and bounds of multiple categories. Nevertheless, so long as there
A. Article 335 Documents
Respondent claims that Article 335 of the Ecuadorian Code of Judicial Function —specifically, subsection (1)—shields all 447 documents from production. In full, that provision provides as follows:
Seventh Suppl. Fisher Decl., Ex. 111 (Article 335, Certified English Translation), No. 10 Misc. 371, Docket No. [76-2].
On its face, Article 335(1) does not support such a breathtakingly broad construction. Indeed, the provision appears to be the Ecuadorian counterpart to Rule 1.6 of the D.C. Rules of Professional Conduct. That rule, which governs the confidentiality of information obtained in the course of an attorney-client relationship, prohibits attorneys from, inter alia, knowingly "reveal[ing] a confidence or secret of the lawyer's
Given that the plain language of Article 335(1) does not unequivocally support their proffered interpretation, it is unsurprising that Respondent and the Interested Parties all rely upon the declaration of an Ecuadorian attorney and jurist—Hernán Salgado Pesantes ("Salgado"). See Resp't Opp'n at 3-5; Republic's Opp'n at 3; Lago Agrio Pls.' Opp'n at 5.
28 U.S.C. § 1746; see also Int'l Ins. Co. v. Caja Nacional de Ahorro y Seguro, 293 F.3d 392, 398 (7th Cir.2002); Sterling Fifth Assocs. v. Carpentile Corp., Inc., 2003 WL 22227960, at *5 (S.D.N.Y. Sept. 26, 2003). Meanwhile, Salgado's declaration, purportedly executed in Ecuador, includes only the following statement:
Resp't Opp'n, Ex. 5 (Salgado Decl.), Docket No. [69-5], ¶ 9.
Simply put, Salgado's unsworn (and unsigned) declaration, provided upon his "honor and conscience," is not substantially the same as the statutorily required language. See Gotlin v. Lederman, 616 F.Supp.2d 376, 389 n. 7 (E.D.N.Y.2009) (declaration that contains "no statement that [the declarant] is subject to perjury for any falsities, no reference to United States law, and no language that conveys that the statement is `true and correct'" falls short of the statutorily prescribed form). For this reason, Respondent and the Interested Parties cannot rely on the Salgado declaration in support of their claims of privilege, and are therefore left only with the language of Article 335(1) itself, which the Court has already concluded does not unequivocally support the expansive construction suggested.
Even assuming, arguendo, the Court could consider Salgado's declaration, the result would be the same for a separate, independent reason—the declaration falls woefully short of the clear and authoritative
It may very well be that the Ecuadorian courts would afford Article 335 the broad construction pressed by Respondent and the Interested Parties, but there is no indication in the record created by the parties—let alone authoritative proof— that they would do so. Having failed to carry their burden of proof, Respondent and the Interested Parties cannot lay claim to Article 335(1) as a basis for withholding any of the 447 documents identified on the Privilege Log. Accordingly, those documents for which Article 335 and no other privilege is claimed as a basis for non-disclosure must be produced.
B. Documents Involving Respondent
The next category of documents—those where Respondent is either the author
In opposition to the present motion, apart from the vague and non-specific descriptions of documents in the Privilege Log, Respondent offers a perfunctory seven-paragraph declaration, which consists almost exclusively of conclusory and empty invocations of privilege. See Resp't Opp'n, Ex. 6 (Wray Decl.), Docket No. [69-6]. Specifically, for nearly all the documents at issue, Respondent avers as follows:
Id. ¶ 6. Respondent also states that, "[t]o [his] knowledge, the documents ... have been maintained consistent with secrecy against the Applicants in this matter." Id. ¶ 7. For a handful of other documents, Respondent declares:
Id. ¶ 5. Coupled with this, Respondent relies upon the two-page Cover Letter prepared by his counsel identifying certain individuals listed on the Privilege Log in the most bare and unilluminating fashion. See Resp't Opp'n, Ex. 3 (Cover Letter), Docket No. [69-3], at 1-3.
As described above, Respondent must adduce competent evidence establishing each of the essential elements necessary to support a claim of privilege for each communication, and he must do so to a reasonable certainty. The defects in Respondent's
First, in assessing the broad claims to privilege at issue here, resort to Respondent's Privilege Log is of little assistance, as "the descriptions of the documents are so brief and of such a general nature that they fail to give the court any basis for determining whether the privilege was properly invoked." Alexander, 192 F.R.D. at 45; see also Zelaya v. UNICCO Serv. Co., 682 F.Supp.2d 28, 38 (D.D.C.2010) (proponents' failure to provide sufficient information to sustain their burden of proof compelled disclosure of documents listed on privilege log). Nor do the hopelessly vague descriptions of individuals in the Cover Letter—e.g., "retained consultant" or "unknown"—aid the Court's determination.
Second, Respondent fails to correlate his declaration's wholly conclusory assertions of privilege—which are nothing more than empty recitations of the applicable legal standard devoid of factual context—with any specific communication or communications. His failure to do so is particularly egregious in light of this Court's express directive that he "correlate any claimed privilege(s) with specific documents ... and articulate with particularity the basis for invoking the claimed privilege." Min. Order (Oct. 29, 2010). Far from being particularized, Respondent's showing is so conclusory that it stymies this Court's ability to assess the basis for any claimed privilege.
Third, and most important for the Court's immediate purposes here, Respondent —who was indisputably representing the Lago Agrio Plaintiffs in one litigation and the Republic in multiple international arbitrations, including the BIT Arbitration —offers no details as to his role at any given moment in time, nor even attempts to identify which litigation or litigations the communications supposedly concern.
These defects are not merely procedural. As a consequence, with respect to the work product privilege, Respondent fails to carry his burden of demonstrating that, "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Lutheran Social Servs., 186 F.3d at 968. Likewise, the Court cannot say, with reasonable certainty, that the communications withheld on the basis of the attorney-client privilege were made outside the presence of strangers, in counsel's capacity as an attorney, or for the purposes of securing legal advice. See Elkins, 250 F.R.D. at 24; GlaxoSmithKline, 294 F.3d at 146. In short, Respondent's declaration, Privilege Log, and other materials "do not establish any facts necessary to find the attorney-client privilege or work product doctrine protect the sought-after documents."
The immediate case—documents where Respondent is either the author or a recipient—provides a useful illustration. Respondent avers both that he (a) was "an active member of the legal team" representing the Lago Agrio Plaintiffs in the Lago Agrio Litigation,
Again, these defects are not merely a matter of form. With respect to the work product privilege, which concerns the vast majority of documents at issue, the inquiry divides in two. Where Respondent is the author, without knowing in what capacity Respondent was operating in the context of the given communication and in relation to what proceeding, the Court cannot conclude that Respondent prepared that communication because of the litigation (whatever it may be)—i.e., for assisting Respondent in preparing for litigation and not for some other reason. Alexander, 192 F.R.D. at 46. Similarly, where Respondent is the recipient, without knowing in what capacity Respondent was operating in the context of a given communication and in relation to what proceeding, the Court cannot draw any inferences as to the author's motivations or, for that matter, that the communication was made consistent with the maintenance of secrecy from one's adversary. Deloitte LLP, 610 F.3d at 140. In neither instance does the record support the conclusion that there would be a "reasonable basis for believing the recipient would keep the disclosed material confidential." Id. The same holds true for the handful of documents withheld pursuant to the attorney-client privilege: absent some context as to Respondent's role and the relationship among the parties, the Court cannot say whether the communication was made for the purposes of legal advice, and in confidence and outside the presence of strangers. Elkins, 250 F.R.D. at 24. These defects are fatal, and the Court finds that Respondent and the Interested Parties have failed to carry their burden of proving, by competent evidence and to a reasonable certainty, each of the essential elements necessary to support their claims of privilege for each of
C. Documents Involving Cristobal Bonifaz
The next category merits similar treatment. Cristobal Bonifaz is identified in the Cover Letter only as "Plaintiff counsel; counsel for Ecuador." As a result, as was true with Respondent, when Cristobal Bonifaz is identified in the Privilege Log as the author or recipient of a communication, the Court has no way of knowing, in the context of that communication, in what capacity he was operating or what his relationship was with respect to other participants. Accordingly, Respondent and the Interested Parties have similarly failed to carry their burden with respect to this category, and therefore Respondent must produce all documents involving Cristobal Bonifaz.
D. Documents Involving "Bonifaz"
The Cover Letter identifies two individuals by the name of Bonifaz: Cristobal Bonifaz, described as "Plaintiff counsel; counsel for Ecuador;" and John Bonifaz, described only as "Plaintiff counsel." And yet, Respondent's Privilege Log repeatedly references only "Bonifaz," without first-name identification. The Court is inclined to assume that all references to "Bonifaz" are to Cristobal Bonifaz, given that John Bonifaz is identified as participating in communications with the unadorned "Bonifaz" (Documents 303-310). The Court need not, however, make such an inference; at best, Respondent's showing is equivocal as to whether "Bonifaz" is counsel for the Lago Agrio Plaintiffs or the Republic, and with respect to what litigations, and therefore the Court cannot find with reasonable certainty, in the context of a given communication, in what capacity he was operating or what his relationship was with respect to other participants. As such, all documents involving "Bonifaz" must be produced as well.
E. Documents Disclosed to Third-Party Attorney, Activist, and Reporter
The next category involves communications with three third parties: (a) Daria Fischer, identified by Respondent as a "3rd party attorney;" (b) Esperanza Martinez, identified as a "3rd party activist;" and (c) Letta Tayler, "a 3rd party reporter." To the extent these communications have been withheld on the basis of the attorney-client privilege, Respondent and the Interested Parties have utterly failed to demonstrate how communications with third-party attorneys, activists, and reporters is consistent with a reasonable expectation of confidentiality, or, for that matter, how any such communications were made in furtherance of seeking legal advice. Similarly, to the extent such documents have been withheld on the basis of the work product privilege, the record does not support the conclusion—and certainly, not to a reasonable certainty—that communications with third-party attorneys, activists, and reporters could be in preparation for litigation, or made with a reasonable basis for believing that these third parties would keep the disclosed information confidential. Therefore, Applicants
F. Documents Disclosed to Various Third-Party Attorneys
Several documents over which the Lago Agrio Plaintiffs assert work product privilege were disclosed to third-party attorneys for the Republic—namely, David B. Allanoff, Derek Baxter, Eric Bloom, Terry Collingsworth, Marta Escobar, Tomas Leonard, and Robert A. Skirnick. In opposition to Applicants' motion, the Lago Agrio Plaintiffs make no mention of this group, electing instead to address other third parties and parrot non-controversial standards governing the effect of voluntary disclosures. See Lago Agrio Pls.' Opp'n at 11-12. As noted by Applicants, the Lago Agrio Plaintiffs do not suggest that there was some sort of joint defense agreement that could salvage their privilege claims, let alone adduce competent evidence in support thereof. See Applicants' Reply at 6 n. 6. As such, to the extent these communications have been withheld on the basis of the work product privilege, the record does not support the conclusion—and certainly, not to a reasonable certainty—that communications with third party attorneys for the Republic could be in preparation for litigation, or made with a reasonable basis for believing that these third parties would keep the disclosed information confidential.
The Republic, for its part, asserts work product privilege only with respect to a subset of these documents (Documents 329-330, 364-367, and 397-400). See Republic's Opp'n at 2 n. 2. But the Republic offers nothing in addition to an empty invocation of the relevant legal standard, asserted upon its own ipse dixit that these communications reflect attorney mental impressions and legal conclusions in connection with ongoing litigations. See Republic's Reply at 7. Such conclusory allegations cannot discharge the burden of demonstrating, to a reasonable certainty, that "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Lutheran Social Servs., 186 F.3d at 968. Moreover, because Respondent is a party to each of the communications, the claim fails for the same reasons described above: without knowing in what capacity Respondent was operating in the context of a given communication and in relation to what proceeding, the Court cannot draw any inferences as to the author's motivations or, for that matter, that the communication was made consistent with the maintenance of secrecy from one's adversary.
Finally, the Court has reviewed in camera Documents 397-400, which cannot support the claimed privilege. In an e-mail chain bearing the subject-line, "Re: Lunch?," Respondent and others discuss the timing and location of a meeting. Answering in the affirmative to the question posed in the subject-line, Respondent writes, "Sure. Will Thursday at 1 work for you?" Eric Bloom responds, "That would be great. Do you want to come by the office or meet somewhere? The office address is 1700 K Street." Finally, the exchange ends with Respondent's reply, "Your Office is OK." Simply put, the work product privilege does not attach to discussions concerning the timing and location of counsel's lunch. The Court does not want to minimize the matter; Respondent's specious privilege claims with respect to these particular documents—each of which were logged and withheld as separate communications
G. Documents for which the Republic Asserts the Attorney-Client Privilege
The Republic asserts the attorney-client privilege with respect to four documents (Documents 364-367). The assertion is unavailing. All four documents involved Respondent. Although the Republic offers its unsworn statement that Respondent was operating in his capacity as counsel for the Republic, see Republic's Opp'n at 7, there is no evidentiary support in the record for that assertion, especially given that each of the communications were made at a time when Respondent was still—in his words—an "active member" of the Lago Agrio Plaintiffs' litigation team. After scouring the Privilege Log, Respondent's declaration, the Cover Letter, and other materials, the Court finds no competent evidence indicating, one way or the other, what Respondent's role was with respect to particular communications. Therefore, the invocation of the privilege fails for the same reasons it did above: absent competent evidence establishing some context as to Respondent's role and the relationship among the parties, the Court cannot say whether the communication was made for the purposes of legal advice, and in confidence and outside the presence of strangers. Moreover, Documents 366-367 are between Respondent and Marta Escobar, who is identified by Respondent as both "client" and "attorney for Ecuador," without any further specification or context. Finally, Documents 364-365 both involve Esperanza Martinez, the "3rd party activist"—and Juan Velasco, purportedly "counsel for Petroecuador," is copied on Document 364—which alone vitiates the privilege absent countervailing record support. Thus, the attorney-client privilege does not shield these documents from production.
H. Documents Disclosed to Testifying Experts
In their moving papers, Applicants argued that communications that were sent to or received from the Lago Agrio Plaintiffs' testifying experts were subject to a "bright-line" rule of full disclosure. Mot. to Compel at 8.
In their reply papers, Applicants identify additional individuals purportedly within the confines of the "testifying expert" category, including Jen Bilbao, Jorge Jurado, and David Russell, each of whom is identified by Respondent as a "retained expert" or "retained consultant." See Applicants' Reply at 6. Because the Court concludes that neither Respondent nor the Lago Agrio Plaintiffs were on sufficient notice that Applicants were claiming such individuals qualified as testifying experts, and because the record is not clear on the point, the Court does not reach the issue. In any event, each of the documents are captured within other categories for which production is required.
Similarly, Applicants seek the disclosure of documents involving three additional third parties not heretofore discussed: (a) Luis Yanza, identified as "member of litigation team;" (b) Lauren Schrero, identified as "retained legal research assistant;" and (c) Manuel Pallares, identified as a "retained consultant." The parties dispute, with varying degrees of specificity, the precise roles these individuals played in the context of the Lago Agrio Litigation. See Mot. to Compel at 10; Lago Agrio Pls.' Opp'n at 11-12; Applicants' Reply at 6. Because each of the communications affected are also captured within other categories for which production is required, the Court need not reach the issue. Applicants are, of course, free to put to Respondent foundational questions regarding the role of such individuals during the course of his deposition.
I. Documents Allegedly Relating to the Subject-Matter of the Crude Documentary
Applicants further contend that an unidentified number of documents identified on Respondent's Privilege Log touch upon the same topics that the Lago Agrio Plaintiffs' counsel were captured discussing during the filming of a documentary film titled "Crude." Mot. to Compel at 7. The Lago Agrio Plaintiffs persuasively counter that Applicants have failed to make a sufficiently particularized showing to justify the broad subject-matter waiver they seek. Briefly stated, Applicants make no effort to correlate specific excerpts from the documentary, for which there are transcripts, with comparable entries on Respondent's Privilege Log, such that would allow this Court to draw the conclusion that the specific topics are sufficiently aligned. Accordingly, as the record now stands, this cannot serve as a basis for compelling production of otherwise privileged documents.
J. Substantial Need, Undue Hardship, and Crime-Fraud
Although the Court does not consider it necessary to reach the issue in light of its other conclusions, it nevertheless pauses to observe that there is some merit to Applicants' assertions that they have a "substantial need" for the materials at issue and cannot, without undue hardship, obtain
The Court has considered the remaining arguments tendered by the parties, and has concluded that they are without merit. Therefore, and for the reasons stated above, the Court shall GRANT Applicants' Motion to Compel. An appropriate Order accompanies this Memorandum Opinion.