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Lawyers in Ecuador-Chevron Suit Must Hand Over Privileged Documents

By Mark Wilson, Esq. on September 30, 2014 | Last updated on March 21, 2019

"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," begins the Fourth Circuit's opinion in yet another chapter of the litigation.

This time, the case is captioned Chevron v. Aaron Page.

Get Ready for Facts

Here's the short version: Texaco -- and Ecuador's state oil company -- now Petroecuador -- drilled for oil in the Amazon rain forest until the 1990s, when Texaco sold its interests to Petroecuador. The toxic byproducts caused lots of problems. American lawyer Steven Donziger sued Texaco (now Chevron) in Ecuador, winning an $18 billion judgment.

Chevron said the 2003 litigation was full of corruption: Donziger "ghost-wrote" the impartial expert's testimony, forged another expert report, and bribed the Ecuadorean judge. In 2011, Chevron sued Donziger in district court in New York under RICO. It also went to The Hague to get relief from the Ecuadorean judgment.

They also sued Aaron and Daria Page, two attorneys who worked on the case. In the suit, Chevron sought production of documents -- including privileged ones and attorney work product. The Pages naturally said "no" to that and refused. The district court disagreed for a couple of reasons.

First was Donziger's privilege waiver. In the RICO suit, Donziger failed to submit a log of privileged documents along with his assertion of privilege. The court would normally have been inclined to let him resubmit his privilege claim along with a log, but instead found that failing to submit the log was a calculated attempt to delay the proceedings. The court found that his bad-faith failure to submit the log effectively waived his privilege claims. Second was the crime-fraud exception. The Pages begrudgingly submitted the documents.

Finally, the Appeal

Well, for starters, the big problem with this appeal was that it wasn't a final, appealable order or even an interlocutory order. It was just discovery. Curiously, the Fourth Circuit said that the formal procedure, rather than to appeal an adverse discovery order, is to defy the court. That's right: Here's the Fourth Circuit's official statement of what to do in this situation: "Resist [the discovery] order, be cited for contempt, and then challenge the propriety of the discovery order in the course of appealing the contempt citation."

But that was under FRCP 45. Chevron also wanted the documents handed over for its case at The Hague. Federal district courts can order production of documents for cases before foreign courts under 28 USC 1782 -- and because the order itself is an order unrelated to any American proceeding, it is a final order and can be appealed.

Even on the merits, however, Page's claim of privilege failed. Again, most importantly, the Donziger waiver cuts against him: If the Fourth Circuit were to find it did not apply, that would impact the litigation in New York. The doctrine of comity requires federal courts not to "step on each other's toes" unless there's a really good reason -- but here, there are no factors that weighed against application of comity. The only part of the judgment in Page's favor was a finding that the Donziger waiver applied only to documents created before October 20, 2010.

Donziger was once a hero in some circles for getting Chevron held to account. Unfortunately, the way in which he apparently got that victory -- if it's even a victory anymore -- has resulted in nothing but shame and scandal.

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